Kitzmiller v. Dover Area School District Trial transcript: Day 1 (September 26), AM Session, Part 1 THE COURT: Good morning to all. Counsel, would you enter your appearances starting with counsel for the plaintiffs. MR. ROTHSCHILD: Good morning, Your Honor. Eric Rothschild from Pepper Hamilton, L.L.P., for the plaintiffs. MR. HARVEY: Good morning, Your Honor. Steve Harvey, Pepper Hamilton, for the plaintiffs. MR. WALCZAK: Your Honor, Witold Walczak, American Civil Liberties Union of Pennsylvania, for the plaintiffs. THE COURT: All right. MR. GILLEN: Good morning, Your Honor. Patrick Gillen from the Thomas More Law Center for the defendants. MR. THOMPSON: Good morning, Your Honor. Richard Thompson of the Thomas More Law Center for the defendants. MR. MUISE: Good morning, Your Honor. Robert Muise from the Thomas More Law Center for the defendants. THE COURT: And good morning to all of you. Are you prepared to open? MR. ROTHSCHILD: Yes, I am. THE COURT: You may do so. MR. ROTHSCHILD: Good morning, Your Honor. My co-counsel and I represent eleven parents who are challenging the Dover Area School District's change to its biology curriculum. That change to the biology curriculum, which is displayed on your monitor and on the screen, singles out the scientific theory of evolution, among all the scientific concepts taught to Dover High School students, as being suspect and promotes the religious proposition of intelligent design as a competing scientific theory. Eighteen years ago, the United States Supreme Court, in Edwards versus Aguillard, held that public schools could not teach students creation science because that proposition's core concept of a supernatural creator is religious, not scientific, and therefore violates the establishment clause of the First Amendment to the United States Constitution. The Court recognized that the teaching of creation science was motivated by a religious and cultural agenda, not the improvement of scientific education. What we will prove at this trial is that the Dover board policy has the same characteristics and the same constitutional defects as the creation science policy struck down in Edwards. You will hear testimony from members of the Dover community, these parents, teachers, administrators, and board members, about how this change to the curriculum came to be. Board members announced their interest in the topic of evolution in starkly religious terms. They looked for a book that could provide a religious alternative to evolution, and they found one in Of Pandas and People. They changed the science curriculum to advance a specific religious viewpoint, and in doing so, they ignored accepted scientific knowledge, failed to avail themselves of the advice of established scientific organizations, and ignored their own science teachers who opposed the change to the science curriculum. They did everything you would do if you wanted to incorporate a religious topic in science class and cared nothing about its scientific validity. And we will show that the members of the school board that passed this policy expressed their desire to teach creationism over and over and over again. That's their word, "creationism." As Your Honor will recall, in January, you permitted expedited discovery so these plaintiffs could decide whether to move for a temporary restraining order. We deposed Alan Bonsell and Sheila Harkins, the last two board presidents, William Buckingham, the head of the curriculum committee when the curriculum change was approved, and Dr. Richard Nilsen, the Dover Area School District's superintendent. Other Links: Book is focus of more debate This York Daily Record article is one of the articles being referred to here. All of them denied media reports that the board had spoken openly about creationism at board meetings leading up to the curriculum change. And they and other witnesses continued to deny such statements in depositions throughout this litigation. Faced with what appeared to be surprisingly contradictory evidence about what the board members actually said, plaintiffs decided not to seek a temporary restraining order so that this Court could decide this case on a more complete record. Now we have that record. Matt, could you pull up Exhibit 21. This is superintendent Nilsen's record of what board members said at a board retreat on January 9th, 2002. Matt, could you highlight Item C. Dr. Nilsen reported that Alan Bonsell talked about creationism and prayer at this board retreat. Could you pull up Exhibit 25. This is Dr. Nilsen's record of what board members said at a board retreat on March 26, 2003. And could you highlight Section D, again, under Mr. Bonsell. Again, Dr. Nilsen reported Mr. Bonsell as talking about creationism. Could you pull up Exhibit 26, please. This is Plaintiffs' Exhibit 26. This is a memorandum received by Mr. Michael Baksa, the assistant superintendent for the district, and copied to Dr. Nilsen, the superintendent, reflecting what Mr. Baksa told Bertha Spahr, the head of the Dover High School Science Department, about a board member's views on teaching evolution. Matt, could you highlight the last sentence of the first paragraph. A board member wanted 50 percent of the topic of evolution to involve the teaching of creationism. Could you pull up Exhibit 60, please. This is a letter that Board Member Heather Geesey wrote to the York Sunday News on June 27th, 2004. Could you highlight the last paragraph, please. You can teach creationism. Could you pull up Exhibit 662. This is a draft change to the Dover biology curriculum prepared by Assistant Superintendent Michael Baksa. Could you highlight the bottom section, please, Matt. Creationism. And if you look at the text of this draft change to the curriculum, it's remarkably similar to the change that was actually approved, though the final version had intelligent design, not creationism. And the entire Dover community is aware of what Mr. William Buckingham, the chair of the curriculum committee when this curriculum change was passed, has said on this subject. (Tape played.) "Such as creationism." Defendants refusal to admit their advocacy of creationism in the face of overwhelming evidence says everything about their true motives. What the board did was add creationism to the biology curriculum under its new name, intelligent design. You will hear from Barbara Forrest, an expert on the history of intelligent design. She will describe how the textbook Of Pandas and People that the school district directs its students to was conceived and developed as a creationist book and changed the name of the concept it was promoting to intelligent design after the Edwards decision held that creation science could not be taught. Indeed, the very definition of intelligent design found in the Pandas book used in Dover is identical to the definition of creationism found in earlier drafts of that book. The publisher of Pandas, like the Dover Area School Board, employed semantics, wordplay, to obscure its clear religious creationist project. Dr. Forrest will also describe how the leaders of the intelligent design movement are carrying out a strategy, what they call the Wedge strategy, to overturn the rules of modern science so that you can include supernatural activity, so that science can be Christian and theistic. You will also hear from John Haught, a theologian, who will explain that intelligent design is not new science. It is old theology, the argument for the existence of God that has been around for centuries. He will also explain that it is not a universal religious view, but rather a particular one accepted by many people of faith but inconsistent with the beliefs of many others. Intelligent design is not identical in every respect to the creation science previously addressed by the Supreme Court in Edwards and other courts, but in all essential aspects, it is the same. Intelligent design really is a perfect example of evolution. Throughout this century, religious opponents of evolution, concerned that evolution contradicts a literal reading of the Bible and promotes cultural decay, have employed varying tactics to denigrate or eliminate the theory of evolution in the minds of young students. They have tried forbidding the teaching of evolution, promoting creationism or creation science as an alternative to evolution, and singling out evolution for special criticism. Each of those tactics have been found unconstitutional by courts. Confronted with that inhospitable legal environment, creationists have adapted to create intelligent design, creationism with the words "God" and "Bible" left out. They have promoted a book, Of Pandas and People, that invokes a master intellect that shapes clay into living form and then says, we're not referring to anyone in particular. This clever tactical repackaging of creationism does not warrant different treatment under the Constitution. The intelligent design movement has argued and we expect you will hear defendants argue in this courtroom that intelligent design has improved on creationism by developing a scientific argument for design. Defendants' own experts call it science in its infancy, and if this is true, there is no educational purpose in test-driving it with high school students. But intelligent design is not science in its infancy, it's not science at all. You will hear from Kenneth Miller, a biologist; Kevin Padian, a paleontologist; Robert Pennock, a scientific philosopher; and Brian Alters, an expert on teaching science. They will testify about how science is practiced and taught, why evolution is overwhelmingly accepted as a scientific theory, and why intelligent design has no validity as a scientific concept. There is no data or laboratory work demonstrating intelligent design. It is not a testable hypothesis. It misrepresents established scientific knowledge. Let's be perfectly clear, there is no controversy in the scientific community about the soundness of evolution and that intelligent design is not a scientific topic at all. Intelligent design has arguments with fancy names like "irreducible complexity" and "specified complexity," but these arguments are not a positive case for intelligent design, just negative attacks on evolution. And even those arguments have not been advanced in the way that real working scientists do every day, by publishing original data in peer-reviewed scientific journals. In fact, intelligent design admits that it is not science at all unless science is completely redefined to include the supernatural. At this trial, you will hear the parties use the term "methodological naturalism." Methodological naturalism is the term used to describe science as self-imposed limitation, that it will only consider natural causes for natural phenomena. Science does not consider supernatural explanations because it has no way of observing, measuring, repeating, or testing supernatural events. It doesn't mean that supernatural events, including divine miracles, have not happened, just that science cannot properly make any statements about them. But intelligent design will not accept the well-established boundaries of science and openly rejects methodological naturalism, the way science has been practiced for centuries. Why? Because it has to. In the end, no matter how many stones intelligent design throws at the theory of evolution, the only alternative it presents for the development and diversity of life, the only explanation for how a bacterial flagellum or the human eye came to be is a miracle, an abrupt appearance, an act of supernatural creation. That, by itself, establishes intelligent design as a religious argument, not a scientific argument, for the creation of biological life that cannot be taught to public school students. The district will argue that any constitutional problem with its policy may be ignored because the statement read to students is brief and because it has promised not to teach intelligent design or even allow students to ask questions about it. This limitation, of course, raises the question, what's the point? What possible secular educational purpose could the policy have? Plaintiffs' scientific and teaching experts will explain that there is none. Worse yet, the statement denigrates the theory of evolution in a way that one of defendants' own experts describes as misleading. Of course, there is no such thing as a little constitutional violation, and this policy surely isn't one. The Dover board has imposed its particular religious viewpoint on the students at Dover High School and through a newsletter to the entire Dover community. Viewed in the context of the public statements and actions by the board in developing and implementing the policy, it can only be viewed by the Dover High School students and Dover community as an expression of the board's religious viewpoint and as favoring a religious view about creation. In the Edwards decision, the Supreme Court underscored that it must be particularly vigilant in monitoring compliance with the establishment clause in elementary and secondary schools. Families entrust public schools with the education of their children but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the students and his or her family. The Dover School Board has violated these parents' trust by imposing its own religious agenda on Dover High School students and the Dover community. And it has clearly divided the Dover community, which could not help but conclude that its high school curriculum now includes a religious proposition, the 21st Century version of creationism. The evidence that I have described this morning and much more evidence that you will hear during the course of this trial will demonstrate that the board had the purpose of promoting religion and that its policy had that effect. For those reasons, at the end of trial, we will request that the Court enter an order finding that the Dover School Board's change to its high school biology curriculum is unconstitutional and ask you to permanently enjoin the district from implementing that curriculum change. Thank you, Your Honor. THE COURT: All right. Thank you, Mr. Rothschild. Mr. Gillen, are you prepared to open? MR. GILLEN: Thank you, Your Honor. Good morning, Your Honor. THE COURT: Good morning again to you. MR. GILLEN: Patrick Gillen again from the Thomas More Law Center on behalf of the defendants in this action, the Dover Area School District and its board of directors. Again I'd like to introduce my colleagues at counsel's table, Dick Thompson and Robert Muise. Absent from the courtroom but valued collaborators in this effort, my colleagues Ed White and Julie Shotzbarger. Seated behind counsel's table, our clients, the Dover Area School District, through its board of directors, citizens elected by their constituents, represent the interests of the parents and families of the district, the students who are educated through the hard work of the board, the administration, faculty and staff of Dover Area School District. Your Honor, it is our pleasure to appear on behalf of our clients today because I am confident that at the conclusion of these proceedings, you will find that the evidence shows that these citizens seated before you today were engaged in a legitimate exercise of their lawful authority where they enacted a modest change to the biology curriculum for the purpose of enhancing science education, for the evidence will show that the purpose and effect truly at issue in this litigation is the purpose and effect of a curriculum change that was worked out after a process of deliberation involving the board, the administration, the science faculty, and the public. And it resulted in a modest four-paragraph statement which mentions intelligent design, makes students aware of the existence of the theory, makes them aware that it's a theory of the origins of life different from Darwin's theory of evolution. It explains that there's a book in the library, Of Pandas and People, that deals with intelligent design theory or IDT. In fact, the evidence will show that the more recent statement points students to other books in the library addressing intelligent design theory and that three of those books are penned by the plaintiffs' experts and critical of the theory. This case is about free inquiry in education, not about a religious agenda. Your Honor, the evidence will also show that this four-paragraph statement is the total actual effect that the curriculum change has on science instruction in the district, because apart from that four-paragraph statement, science teachers teach evolutionary theory as required by Pennsylvania state standards. The use of texts presents the evolutionary theory. Biology by and Levine, one of the coauthors, Ken Miller, is one of the plaintiffs' experts in this case. In this way, the evidence will show that while students are taught evolutionary theory, they are merely made aware of the existence of another theory, the intelligent design theory, and that while students are assigned a basal text that presents evolutionary theory, they're merely made aware of the existence of a reference text in the library that deals with intelligent design theory, if they care to check it out. And they are told that they will be tested on evolutionary theory, as required by Pennsylvania state standards. Further, the evidence will show that Superintendent Richard Nilsen, in response to concerns addressed by science faculty about the implementation of the curriculum change, issued specific guidelines that intelligent design theory would not be taught, that creationism would not be taught. Teachers would not teach their own religious beliefs. Now, there's no question, Your Honor, that this final result was worked out through a contentious policy-making process that has led some to liken making legislation to making sausage, a process that involved, at times, heated argument by members of the public, members of the board, false charges and intemperate remarks. But the evidence will show that the consistent goal of the board, as a whole, was to pursue what they believed to be a legitimate educational purpose and to comply with the law. Alan Bonsell is a perfect example. He came to the board without any background in education of the law, just a sincere desire to serve his fellow citizens. By virtue of his personal reading, he was aware of intelligent design theory and that 300 or so scientists had signed a statement indicating that biologists were exaggerating claims for the theory. He had read about the famous Piltdown man hoax. He had an interest in creationism. He wondered whether it could be discussed in the classroom. Those questions are not evidence of unconstitutional conduct, Your Honor. They were quite legitimate. In fact, the evidence will show that on the very day of the March 26th, 2003 board retreat, the assistant superintendent of the district, Mike Baksa, attended a seminar sponsored by the Pennsylvania School Boards Association given by a presenter with a law degree from Harvard, a facilitator who was a professor with a Ph.D. in the history of philosophy of science. They discussed the issue because it was a legitimate issue. During that seminar, Mike Baksa heard the view expressed that it would be useful and good science education to at least introduce a discussion of creationism into the biology curriculum. More importantly, Your Honor, the evidence will show that nothing came of those questions. During his tenure as board curriculum committee chair, Alan Bonsell never asked for any change to the biology curriculum, the text or instruction. He met with the science teachers in the fall of 2003 and learned that they didn't teach origins. It was too problematic. They focused on change within species. They mentioned creationism, but they didn't teach it, that's what they told him, because they thought it would be illegal. And that was the end of the matter. He asked legitimate questions. He got legitimate answers. That was the end. When Bill Buckingham tried to hold up the purchase of the basal text in August of 2004, the text authored by one of the plaintiffs' experts, Bonsell voted against that because he believed the students should have the book recommended by the science faculty, quite apart from whether the board approved the use of Pandas and People. And on the night, the very night that the board approved the curriculum change at issue here, when the science faculty expressed concerns that the inclusion of the mention of intelligent design in the curriculum would require them to teach it, although they did not teach origins, it was Bonsell who appended the note to the curriculum which made it clear that they would not be required to teach intelligent design theory. He did that because he understood they did not teach origins, and they understood that intelligent design theory, as indicated by the subtitle of the book, Of Pandas and People, deals with the question of biological origins. Your Honor, the evidence will show something very critical in this case, that Bill Buckingham did not exercise a determinative impact on this policy-making process. Not at all. In fact, the evidence will show that the board listened to the science faculty more than it listened to Bill Buckingham. Bill Buckingham wanted the text, Of Pandas and People, approved with the basal text. He wanted it purchased with school money. He wanted it used in the classroom. He wanted the intelligent design theory presented side by side with evolutionary theory as if in dialogue. The teachers objected, and the board agreed with the teachers. Now, it's true at the end of the day the board didn't agree with everything the teachers said. The board believed that intelligent design was not creationism. They knew what that was, the Book of Genesis. They concluded that intelligent design was science. They looked at the text of Pandas and People. That's not the Book of Genesis. They believed it was a legitimate educational goal to make students aware of the existence of another scientific theory, but they agreed with the teachers' objections that for practical reasons, students shouldn't be taught intelligent design theory. Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion. Defendants' expert will show this Court that intelligent design theory, IDT, is science, a theory that's advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. This expert testimony will also demonstrate that making students aware of gaps and problems in evolutionary theory is good science education. It's good liberal education. Dr. Michael Behe will offer you his opinion in this case. He will explain the basis for his opinion that the insights into the biochemical complexity of the cell, made possible by modern microbiology, have undermined the claims made for natural selection, the mechanism at the center of evolutionary theory. Likewise, Dr. Behe will explain that evolutionary theory does have gaps and problems and that it's good science education to make students aware of those gaps and problems, make them aware of the intelligent design theory. The evidence will show that Dr. Behe takes these positions and posits his thesis of irreducible complexity pointing to design not because evolutionary theory is inconsistent with his religious beliefs. It's not. Not because he believes in creationism. He doesn't. And as he'll explain, creationism and intelligent design are two very different things. Dr. Behe takes these positions because the empirical evidence points in that direction. You will also hear testimony from Dr. Scott Minnich. Dr. Minnich received his Ph.D. from Iowa State University in 1981. He was a post-doctoral fellow at Purdue and then Princeton. Since 1987, he has taught microbiology extensively at the undergraduate and graduate, including medical school, levels. Dr. Minnich will testify that IDT is science, not religion. He will explain that design principle, design theory, drives his sophisticated research in the lab. He will testify that Of Pandas and People is a good text, a little dated, but one that asks critical questions about the mechanism of natural selection, which is a centerpiece of evolutionary theory, that it makes students aware of gaps and problems in the theory. Dr. Minnich will testify that this is good science education and it's good for science. Dr. Dick Carpenter will also provide testimony. He's an assistant professor in educational leadership at the University of Colorado. He's an expert in educational policy and practice. He will testify that DASD's curriculum policy advances legitimate secular educational goals, promotes critical thinking, gives students a fuller understanding of evolutionary theory, including its strengths and weaknesses, something that's mentioned in the basal text authored by the plaintiffs' expert. In this way, he'll show that Dover's modest curriculum change actually brings it more into line with Pennsylvania's academic standards, which require that students be able to critically assess the status of existing theories, and, insofar as it helps students grasp the controversy that can surround science, points to a goal that's included in the Santorum amendment, the No Child Left Behind Act. Dr. Steven Fuller will also testify for the defendants. He has a master's in philosophy and history of science from Cambridge University, a Ph.D. in the philosophy of science from the University of Pittsburgh. He's the author of eleven books, over 200 articles and chapters and books that have been peer-reviewed. He was the first post-doctoral fellow in the history of philosophy of science at the United States National Science Foundation, the first research fellow in the Public Understanding of Science at the United Kingdom's Council for Economic and Social Research. His works have been translated into 15 languages. He has been a visiting professor in the United States, Sweden, Denmark, the Netherlands, Israel, and Japan. Dr. Fuller will testify that intelligent design is science, not religion, that the convention of methodological naturalism, which some would use to disqualify intelligent design theory from science, is by no means a necessary feature of scientific inquiry, and that scientific progress has taken place without any commitment to methodological naturalism. He will also testify that efforts to disqualify IDT from science based upon causation or testability or other so-called demarcation criteria, including so-called methodological naturalism, are inherently flawed. Dr. Fuller will explain that intelligent design theory is not creationism. It is not inherently religious. He will also explain, for that matter, that any number of phenomena we now understand, whether it's gravity or the wave-particle duality of quantum mechanics, were once thought to be supernatural. Finally, Dr. Warren Nord will testify for the defendants. Dr. Nord is a professor in the philosophy of education and philosophy of religion at the University of North Carolina Chapel Hill. Nord will testify that intelligent design theory is not religion. He will explain that efforts to exclude intelligent design theory from science based on so-called methodological naturalism actually result from a philosophical naturalism which is, itself, a nonscientific principle. He will also explain that from the standpoint of the philosophy of education, liberal education, the thesis posited by intelligent design theorists gains greater strength when seen in a larger context, whether the fine-tuning of the universe which physicists looked at so statistically improbable but so necessary to support life on earth or work in the area of phenomena such as the mind. Dr. Nord will also explain the basis for his opinion that the board's modest curriculum change is a step in the right direction for science education and consistent with national science education standards precisely because it makes students aware that there are scientific disputes over claims advanced by rival theories, something students should know in order to have a realistic sense of this critical dimension of scientific progress. Taken together, this expert testimony will confirm the defendants' judgment by showing that intelligent design theory is not creationism. Indeed, it does not even require the action of a supernatural creator, that intelligent design is not religion or inherently religious, that intelligent design theory is science. It's a theoretical argument advanced in terms of empirical evidence, technical knowledge proper to scientific and academic specialties. Indeed, the evidence will further show that intelligent design theory is really science in its purest form, the refusal to foreclose possible explanations based on the claims of the dominant theory or the conventions of the day, to proceed from the same sort of perspective that led Newton to explore and ultimately explicate gravity. It shares the attitude of those who worked in the field of quantum mechanics, who posited the wave-particle duality, despite the fact that to some it smacked of the supernatural. It shares the determination of scientists who this very day will look at paranormal phenomena or phenomena that defy our current understanding such as the mind. For just these reasons, the defendants' expert testimony will show that Dover's modest curriculum change embodies the essence of liberal education, an education that frees the mind from the confines, the constraints, the conventions of the day, and, in so doing, promotes the curiosity, the critical thinking, the quest for knowledge that has served our country so well. In conclusion, Your Honor, I respectfully submit that the evidence will show that the primary purpose and primary effect of Dover's modest but plainly significant curriculum change is to advance the very sort of legitimate educational goal which the United States Supreme Court recognized in Edwards versus Aguillard, what the Supreme Court of the United States acknowledged, with approval, that school boards could quite properly require the teaching, never mind mention, about the theories of origin for legitimate secular educational purposes. Your Honor, we look forward to presenting a defense in this case. Thank you. THE COURT: All right. Thank you, Mr. Gillen. Before we get to our first witness on behalf of the plaintiffs, let me welcome our spectators to this and the parties, of course, and the media to this important case. We're going to be in -- although this is a relatively large courtroom, we're going to be in fairly close quarters for a while. Those of you who are going to stick around will be here for the next week and for, it looks like, all of October, as well. I have been struck in the pretrial proceedings with the sense of decorum on the part of the parties and the spectators. I believe that that will continue, so it's not necessary for me to say much besides I want you to do that and respect the witnesses on both sides as they testify and avoid any expressions that would disrupt the Court in any way. I certainly haven't seen that, and I don't expect to see that in this case. You would do me a favor and you would do counsel a favor and the parties a favor if you would restrict your movement in and out of the courtroom during testimony to a minimum. That's not to say that you can't leave, but don't leave lightly just because you're bored and you want to go out into the hallway and then filter back in again. If you must leave, that's certainly acceptable, but we want to keep the traffic to a minimum because I think that that keeps us better focused. We will take breaks at reasonable intervals, and I assure you we'll have lunch, as well, a lunch break, and we will take this in a way that is deliberate and yet recognizes that we're going to be here awhile and we have plenty of time to try this case. So with that -- now, Mr. Rothschild, you're not going to move for the admission, I don't think, at this point, of any exhibits, or are you with respect to your opening? Do you want to do that? MR. ROTHSCHILD: No, I'm not, Your Honor. THE COURT: I assume not. With that, then we can start with your first witness. MR. WALCZAK: Plaintiffs call Kenneth Miller. Other Links: Kenneth R. Miller Personal website for this witness. Wikipedia: Kenneth R. Miller An internet-based encylopedia entry for Dr. Miller. Dr. Miller's expert witness statement (PDF) This statement was filed by Miller prior to the trial. KENNETH R. MILLER, PH.D., called as a witness, having been duly sworn or affirmed, testified as follows: THE CLERK: Please be seated and state your name. Please spell your name for the record. THE WITNESS: Sure. Good morning, Your Honor. THE COURT: Good morning. THE WITNESS: My name is Kenneth R. Miller, K-e-n-n-e-t-h, initial is R., M-i-l-l-e-r. THE COURT: You may proceed. DIRECT EXAMINATION BY MR. WALCZAK: Q. Good morning, Dr. Miller. A. Good morning. Q. Where do you live? A. I live at 142 Martin Street in Rehoboth, Massachusetts. Q. What do you do? A. I'm a professor of biology at Brown University. Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 214. Do you recognize this document? A. Yes, I do. It's the first page of my resume or, as we academic guys call it, my curriculum vitae. Q. Is this a fair and accurate representation of your background? A. Yes, it is. The individual document is a few months out of date, but, yes, that is. Q. I'd like to use this to go over your background. Focusing first on your education, you graduated from Brown University in 1970? A. That's correct. Q. And then you got a Ph.D.? A. At the University of Colorado in 1974. Q. And did you do a Ph.D. dissertation? A. Yes, I did. Q. And what was that on? A. The Ph.D. dissertation was on the structure and location of the coupling factor on the thylakoid membrane or, as I once explained to my mother, I'm trying to figure out and tried to figure out in the thesis how plants capture the energy of sunlight and convert it into chemical energy and food. Q. Dr. Miller, I'm likely going to have to ask you to explain things the way you would to your mother a number of times during this testimony. Please bear with me. A. Thank you, sir. I will keep that in mind. Q. I'd like to focus now on your professional experience concerning your academic appointments. After you got your Ph.D., what did you do next? A. I went to Harvard University to join the faculty as a junior faculty member, and I spent two years there in the position of lecturer in biology and then four years as assistant professor of biology. Q. And then in 1980 you went to Brown University? A. That's correct. I got a job offer from my undergraduate alma mater and jumped at the chance and returned to Brown in 1980. Two years later I was given tenure and promoted to associate professor, and four years after that, I was promoted to full professor, which is a rank I still hold. Q. And you continue to teach at Brown today? A. Yes, sir, I do. Q. And you've been there consistently since 1980? A. I have left town once or twice, but, yes, sir, I have been there consistently. Q. And what do you teach at Brown? A. I teach courses in molecular and cellular biology, and I also teach what is, in many years, the largest course that a university gives freshmen, an introductory to general biology course. Q. Does that freshman-level course include a section on evolution? A. Yes, it does. No course in biology would be complete without it. Q. Dr. Miller, are you still involved in scientific research? A. Yes, sir, I am. Not as much as I used to be, but I have a small lab and I have a couple of undergraduate students who work with me and I continue to do research. Q. And remembering that I'm on your mother's level, could you just briefly describe the area of your scientific research? A. Well, I continue to be interested in the structure and function of biological membranes. My main research tool is the electron microscope. And the main area in which I work right now is the process by which proteins go through, pass through biological membranes. And that's very important to cell biologists because it concerns basically how things get where they're supposed to be. Cells depend upon proteins getting to the proper destinations, and I'm trying to work on part of the mechanism of how they get there. Q. Now, directing your attention, again, on the first page still, to professional service and associations, it appears that you are a member of a number of professional associations, for instance, the American Association for the Advancement of Science. What is that? A. The American Association for the Advancement of Science is, I believe, the largest scientific organization in the United States. It has tens of thousands of members. It includes scientists of all disciplines. And it probably, if any single organization can fairly be said to speak for the scientific community of the United States, it is that association. It's often called simply AAAS. Q. And I note you're also a member of the American Society for Cell Biology. What is that? A. The American Society for Cell Biology is one of the largest organizations of experimental biologists in the United States. It has seven or 8,000 members. As many as 12,000 people attend its annual meetings. And it is one of the, as I said, major organizations promoting experimental biology in the country. Q. Now, I note you have held a number of positions as -- for instance, the chair of the American Society for Cell Biology program committee. It looks like you've had two stints as the chair of the education committee. What do those committees do? A. Well, the program committee is the committee that organizes the scientific program of the annual meeting with more than 3,000 contributed talks and papers. And when I chaired the program committee, I was, in effect, the director of the scientific meeting picking the major talks, the symposia, organizing the poster sessions and so forth. The education committee is a committee that promotes and supports scientific education at all levels. Almost all of our members teach at one university level or another, whether it's at the graduate level, perhaps in medical school or undergraduate colleges, and we organize programs to help our members stay abreast of new developments in teaching technology and to promote science teaching and education. The committee also has, as does the society, a very strong interest in promoting K through 12 science education throughout the country, and we often weigh in on important issues that we believe affect the future of science education in the country. Q. How do you become a chair of these committees? A. I'm often -- when one is named a chair, one receives both congratulations and condolences at the same time. I believe that I was named the chair of the program committee because the newly-elected president of the society in that year, Susan Gerbi, was a colleague of mine and she wanted to leave her imprint on the scientific meeting, and therefore she was very comfortable with me heading the program committee. You might say that I got that job through the old girl network. The education committee, however, is a different matter. I have been interested in education for quite a long time. I spend a lot of my time and energy teaching at the university level, and I've also been involved in writing textbooks at both the college and the high school level. My colleagues on the committee and colleagues in the society are aware of that and several elected councils of the society thought that I would be basically the best person to chair that committee. Q. I note you're also the past editor of a number of journals, for instance, the Journal of Cell Biology, the Journal of Cell Sciences, Advances in Cell Biology. First of all, what are these publications? A. Well, the two journals that you mentioned are two of the leading journals in the field of cell biology. And I served a term as one of a panel of editors on each of these journals, and my function in that respect was to take manuscript submissions, scientific papers that were forwarded to me by the editor-in-chief of the journal, papers that had been submitted for publication, pick out referees or reviewers, often two or three or four scientists to critique those, look for scientific flaws, decide if they should be revised and decide if they have publishable quality. They would then report back to the editor. I would then make an initial decision, all editors do, on whether or not they were suitable for publication, whether or not they needed to be revised, whether or not they should be rejected, and forward that decision to the editor-in-chief, who would then make the final decision. In the case of the series Advances in Cell Biology, this was a series of monographs, which are papers, review papers written by individual scientists. And in that case, my authority was somewhat greater and somewhat different in that I solicited manuscripts from various scientists who were doing cutting-edge work. I asked them to summarize their work and the work in the field, and I then bundled these 10 or 15 papers a year into this proceeding, which was designed to keep scientists abreast of cutting-edge developments in the field. Q. I'd like to direct your attention to Page 2 of your curriculum vitae. There's a topic there, it says, Scientific Papers. There are a lot of listings on Pages 2 through 5. Do you know how many are listed there? A. Actually, I haven't counted them. I think it's in the neighborhood of 45 to 55, somewhere in that vicinity. Q. Now, the heading there says, Scientific Papers. Is there some particular meaning to that? A. Yeah, most scientists would understand it right away. What this means, in more specific terms, is that these are scientific research papers that have been published in peer-reviewed scientific journals. Q. And this concept of peer review, for us non-scientists, what does that mean? A. Peer review is the essence of the scientific process. It means, basically, that when you've done research that you think is sufficiently important and rigorous to merit attention and publication, you send it off to a journal. The journal will then have several of your colleagues in the field, people who can be disinterested, objective, and critical evaluators, tear your paper apart, if they possibly can, try to find flaws, try to find problems with it. The editor will then mediate whether your paper is going to be rejected or perhaps revised a little bit. But it is the essence -- peer review is the essence of the give and take that goes forward in the scientific community to try to ensure, especially in leading journals, that the papers that are published are scientifically accurate, that they meet the standards of the scientific method, and that they are relevant and interesting to other scientists working in the field. Q. If you could turn to Page 6. I note there's a heading there that says, Secondary Textbooks and Teaching Materials. And if you could flip over to Page 7 first. At the top there it says, College Textbooks. Are you the author of some college textbooks? A. Yes, yes, I am. Together with a colleague named Joseph Levine, I have coauthored two college textbooks in general biology that were published by the D.C. Heath Company. That company has now gone out of business, and those two textbooks which were published in 1990 and 1993 are out of print. At the peak of their usage, they were used by more than 200 colleges and universities around the country. We are currently at work on a new college-level manuscript, and we hope to have that published in the years ahead. I notice -- I mentioned the CV was a little bit out of date -- it says, Expected publication, 2005, W. H. Freeman Company. We and our publishers, Freeman, have had a parting of the ways because we had a fundamental disagreement on what this book should be like, so we are currently considering other offers of publication. So this book will not be published this year. Q. You mentioned that this book is not still in use at the college and university level. Why is that? A. It's not still in use because it was last copyrighted in 1994, and by science standards, that's an ancient text. Science moves so quickly that material in a textbook that's ten years old is certainly going to be seriously out of date. And I think that's one of the reasons why even those instructors who liked and really enjoyed working from our book would certainly not use it today, simply because there's too much science that has passed under the bridge. Q. Now, if you would flip back to Page 6 of your curriculum vitae, I note that you have also been the author of a number of high school textbooks. When did you first start writing those textbooks? A. To be perfectly honest, I first started writing when I was persuaded by Joseph Levine, my coauthor, that this would be a good thing to do, and we first started writing our first manuscript in 1982. Q. And the first publication was in 1990? A. The first publication was in 1990, so it took us eight years to go from conceiving and beginning the manuscript to our first publication. Q. Now, I note there appear to be -- I don't know if it's a number of different editions or these are different books. Could you explain that? A. Yeah. All of these books have been published by the Prentice Hall Company, which is now a division of Pearson Publishing. And I tried on this to list a number of different editions. The first book -- they all have catchy titles like Biology. The first book, you'll notice, is simply called Biology, and it came out in five different editions, first through fifth. The second book is called, Biology, the Living Science. It came out in two editions. The third book, we liked that original title, I guess, and just went back to plain old Biology, but that is an entirely different book from the earlier Biology. High school teachers, I have to say, have a way to distinguish these books. They name them by the animals on their cover. So high school teachers will know the first book is the elephant book, the second book is the lioness book, and the current book, the one near the bottom, as the dragonfly book. So altogether, these books have -- there have been three different books, and they have appeared in the neighborhood of 11 or 12 different editions. Q. I show you what's been marked as Plaintiffs' Exhibit 31. Is this the cover of the dragonfly book that you mentioned? A. Yes, sir, it is. Q. And this is the 2004 edition? A. This, I believe, is the cover of the 2004 copyright, correct. Q. And are you working on yet another edition of this book? A. Yes, sir. This weekend Joe and I were working on final revisions for what will be a 2007 copyright of this book, and we are about six months away from starting on a complete rewrite of the entire textbook. Q. Is this a textbook that's used in the Dover Area School District, to your knowledge? A. My understanding, sir, is that it is. Q. And is it used anywhere else besides Dover? A. It is used in each and every one of the 50 states of the United States and several foreign countries. Q. Do you know how many high schools use your biology book? A. I can't give you a number in terms of the number of schools, but I have been told by my publisher that about 35 percent of the high school students in the United States use one or another of the various textbooks we've been discussing. Q. And what topics are covered in this biology textbook? A. Soup to nuts. We start out with the nature of science, the nature of biology. We talk about the structure of the cell, cell biology. We talk about molecular biology and genetics, ecology, evolution. We do a phylogenetic survey, which is a biologist's term for looking at all the various categories of living things, and we conclude the book by looking at the various systems of the human body. So we try to provide in the book not a curriculum, but a resource bank from which teachers can draw as they put their curriculum together for the types of courses that students need to take in Pennsylvania and other states to meet state requirements. Q. And as part of your process in writing and developing these books, are you familiar with, say, the competition, competing high school biology textbooks? A. Certainly. It is a free market and a competitive market, and it always pays to keep an eye on the competition, so I keep an eye on the other books, as well. And they do the same for us, of course. Q. And do you send your manuscripts, if that's the right term, to high school teachers for feedback about whether the subject is presented right or for any reason? A. Yes, we do. Q. And why do you do that? A. We do that for a couple of reasons. Joe and I are presumed to know the scientific field, but every time we write a chapter and we edit our chapters for each other, we, first of all, send it to a scientific expert to make sure that we've got the science right. Even if it's my own field of cell biology, I'm eager to see a critical opinion from another researcher to see if I got it right. But we also send these chapters to individual experts in secondary school education, individual high school teachers, and focus groups or panels of high school educators to critique whether or not we have explained things in a way that they think their 14- and 15-year-old students will understand, whether the text is interesting, and whether the text is going to be helpful to them in the classroom in the goal of getting students turned on to science. Q. So do you make changes in each subsequent edition in response to the feedback you've gotten from high school teachers? A. Yes, we do, quite a few changes. Q. Now, isn't it unusual for a research scientist to also be a high school textbook author? A. I suppose it is. Q. Why do you do it? A. Originally, when I was approached by Dr. Levine, I told him to take a hike. I said I wasn't interested in this. At the time I was a few months short of a tenure decision, and the only thing that matters at a research university is getting my scientific papers out, getting my grants funded, and getting the respect of my colleagues in the field. But he managed to show me a few existing books that were used in high schools, and he pointed out at the time I had two young daughters and most scientists would like nothing more than to see their children go into science. And as I leafed through the books, they were all perfectly okay, but I found two problems with them. One is they were dreadfully boring. I couldn't look at these books and imagine why anyone would want to go into science. And then the second thing is, they sort of gave the impression that everything had been discovered. And any person in experimental science knows that's just not true. So I called Joe back, and I said, Joe, let's do this, because I'd like to write a book with you that would turn kids on to science, that would tell them about the great unexplored territory that lies out there and would tell them that the most interesting thing one can possibly do, short of a career in law, of course, is to have a career in science. Q. Have you ever testified in court before as an expert witness? A. No, sir, I have never testified in court as an expert witness. Q. Have you testified in court on the subject of biology and evolution as you will be doing today? A. Well, earlier, actually last year, I did testify in federal court as a fact witness in a trial that related to the teaching of evolution. Q. And what was that case? A. I believe you'll correct me if I have this slightly wrong, but the case is known as Selman versus Cobb County. And it concerned a case in which the Cobb County Board of Education had attached a warning sticker to all textbooks that contained material about evolution. And this warning sticker or this label had a three-sentence admonition to students. A number of parents, as I understand the case, a number of parents in the district objected to this sticker being placed on textbooks. They filed a lawsuit in federal court. I was contacted by attorneys for the plaintiffs. They pointed out that my book was one of the ones that had had the sticker placed on it, and they asked me if I could come as a witness of fact to tell the Court how textbooks are put together, what the decisions were that I made into my textbook, and perhaps also to comment on whether or not I thought the sticker was an appropriate tool to advance education. Q. And you did, in fact, testify, I believe it was in November of 2004, in the Selman case? A. Yes, sir, that's correct, I did. Q. I'll ask you about your experience with creationism and creationists. Have you been involved with the creationist movement? A. I suppose you could say I have been involved with the movement, yes. Q. And could you tell us how you got into this? A. The very first year that I taught at Brown University, in the fall I taught part of a very large freshman-level introductory biology course. So a lot of students saw me as a new professor at Brown, and I guess they rather liked my energy, enthusiasm, and teaching style. And in the spring, when I was not teaching, I was setting up my research laboratory, a group of students came to me and they said, we really like your lectures in Bio 11, which was the course. I said, gee, thanks a lot. And they said, there's a fellow whom the Christian students association is bringing to campus. His name is Henry Morris. He is the founder and the president of the Institute for Creation Research in California, and he has dared any scientist on campus to debate him. You're pretty good at giving lectures, why don't you debate this guy? And at first I told the students, no, I'm not interested. And they said, why? And I said, because I'm a cell biologist, I'm not an evolutionary biologist. I want to set up my research lab, so please go away. But they were very persistent, and they started to pester me and say, well, does that mean this guy is right? I said, no, it doesn't mean this guy is right. And they said, well, if he's not right, why don't you debate him? So finally I agreed to go ahead and do this. I had a couple of conditions I attached to doing that. I'm glad I did. One of those conditions was that the students would get me audiotapes, books, and pamphlets of the so-called creationism or creation science movement so that I could see what the arguments were that I was likely to face. And my recollection is I spent almost four solid weeks listening to the arguments presented, looking up the arguments, because many of them were in geology and physics and astronomy and way outside of my scientific field, making sure that I understood them and preparing for that debate. And we finally debated in April of 1981. We had the debate, as it turns out, at the largest building on our campus, which is the hockey rink, and it drew nearly 3,000 people. It was very interesting. And I believe, on the basis of reports of a wager made by the science writer and the religion writer for the Providence Journal, I believe that I prevailed in the debate, though one can never say for sure. And over the next several years, I engaged, I think, in three more debates with scientific creationists. Q. And have you also written articles critiquing creationism? And I guess I would direct your attention to Page 5 of your curriculum vitae, and there's a section, Articles in Defense of Scientific Integrity. A. Yes, I have. And this section lists three of them. And these date from the period when I was debating scientific creationists in the early 1980s. I wrote an article for teachers in the American Biology Teacher. I took some of the arguments I had faced in the debate and I put answers out in a small journal called Creation/Evolution so that other people who might engage in debate could have the benefit of my research and experience on this. And I also wrote an article for -- an edited volume edited by the very distinguished anthropologist, Ashley Montagu, on scientific creationism in 1984. So, yes, I have written on the subject. Q. I'm going to ask you about your experience now with intelligent design. Have you been involved in debates, public debates, over the notion of intelligent design? A. Yes, sir, I have. Q. And when was the first one? A. Well, the first one I didn't actually know was going to be about intelligent design. I was approached by an organization of -- I believe of largely Evangelical Christians known as the American Scientific Affiliation, and they asked me if I would come to their summer meeting, I think it was in Asheville, North Carolina, it was in North Carolina, and debate a biochemist from Lehigh University on the subject of a textbook for public schools called Of Pandas and People. And I had never heard of the book at the time. They mailed me a copy. I read through the book. And I was unfamiliar with the person who opposed me in debate at that time, but his name was Michael Behe, and as I mentioned, he's a biochemistry professor from Lehigh University. And that was the first place where I heard the term "intelligent design" used in place of the more familiar creation science, which I had debated with various people in the early 1980s. Q. Was this the only debate you had on intelligent design? A. No, sir, it isn't. And I'm sorry that I cannot give you an exact number, but if you count point counterpoint debates in print, radio debates, and debates in person, I would expect that probably I have debated on the issue of intelligent design 12 or 13 times, quite a few more times than I debated scientific creationism. Q. And you have also written articles about intelligent design. I direct your attention to Page 6 under Essays and Reviews. Now, are some of these articles about the concept of intelligent design? A. Yes, sir, they are. The 1994 article called Life's Grand Design in Technology Review actually foreshadowed many of the arguments of intelligent design, so it clearly was on that issue. And then the last three articles that are listed, the one in Natural History magazine, the one in 2003 in the volume edited by Neil Manson, and the one in 2004, which is listed there in press but now, in fact, has been published -- I said this was just a tad out of date -- all of these deal with intelligent design. Q. I want to talk about one more listing on your curriculum vitae, and that's on Page 7 under General Audience Books. There is one book there that I think has a provocative title, Finding Darwin's God. What's that about? A. I meant the title to be provocative. This is a general audience book or a trade book, as publishers call it. And one of the experiences that I had over the years appearing in public and talking about evolution is that many people would tell me that no matter how compelling the scientific arguments were that I made in favor of evolution, they were bothered by the fact that it was perfectly obvious that evolution was an inherently atheistic or God-denying theory. And I'd just sort of shake my head and shrug and say, I don't think so, and point out the fact that I'm a person of faith and a regular churchgoer, and I certainly don't see any conflict. And they would ask me to explain, and I would explain. Another day I would explain, another day I would explain again. And finally I decided, you know, I should probably write a book about this because a lot of people are interested. So I wrote a book called Finding Darwin's God, and the subtitle of that book I think is more revealing of content, and that is, A Scientist's Search for Common Ground Between God and Evolution. And what I tried to do in the book was twofold, first to explain why science, sciences and the scientific community, find evolution to be so useful, so valuable, and so compelling as a scientific explanation, and then, secondly, to explain how a person of faith -- although I'm a Roman Catholic, I tried to construe this in a vary broad way so that I would say how a person following any of the great Abrahamic religions could appreciate evolution in the context of their faith. And I hope very much I was successful in doing that. Q. Now, that's not a scientific publication, you said that's a trade publication? A. It certainly is not a scientific publication. Everything that a scientist writes or says is not necessarily a scientific statement or a scientific publication. MR. WALCZAK: Your Honor, at this time we would proffer Dr. Miller as an expert in biology, evolution, instructional biology materials for high school students, creationism, and intelligent design. THE COURT: All right. Thank you. Cross-examination? MR. MUISE: Your Honor, pursuant to the stipulation of the parties, we would agree that the experts are qualified to testify within their area of expertise, the only exception being plaintiffs' expert Barbara Forrest, which we will then, at that time, take the opportunity to voir dire. But we don't have any objections based on that stipulation. THE COURT: I understand. Thank you, Mr. Muise. You may proceed. And he is admitted for that purpose for the record. MR. WALCZAK: Thank you. THE WITNESS: Thank you, Your Honor. BY MR. WALCZAK: Q. Dr. Miller, I want to ask you five questions to elicit your opinions about the big issues in this case. Do you have an opinion about whether evolution is a testable theory that is accepted by the scientific community? A. Yes, sir, I do. Q. And what is your opinion? A. My opinion is that evolution is an eminently testable theory and that it is broadly and generally accepted by the scientific community. Q. Do you have an opinion about whether intelligent design is a testable theory that is accepted by the scientific community? A. Yes, I do. Q. And what is that opinion? A. My opinion is that intelligent design is not a testable theory in any sense, and that as such, it is not generally accepted by the scientific community. Q. Do you have an opinion about whether intelligent design is or even can be properly considered a scientific theory? A. Yes, I do. Q. And what is that opinion? A. My opinion is that intelligent design is not science, and therefore it cannot be construed as a scientific theory in any sense whatsoever. Q. Do you have an opinion about whether intelligent design is a particular religious view, namely a form of creationism? A. Yes, sir, I do. Q. And what is that opinion? A. I believe that intelligent design is inherently religious and it is a form of creationism. It is a classic form of creationism known as special creationism. Q. Do you have an opinion about whether the four-paragraph statement read by the Dover School District promotes students' understanding of evolution in particular and science generally? A. Yes, I do. Q. And what is your opinion? A. I think the statement by the Dover Board of Education falsely undermines the scientific status of the theory of evolution, and therefore it certainly does not promote student understanding or even critical thinking, and I think it does a great disservice to science education in Dover and to the students of Dover. Q. Let's now explore the basis for your opinions. What is science? A. You ask a good question. It's useful, I think, to parse it to where the word comes from. The word "science" comes from the Latin word scientias, which means knowledge. And in the most general sense, the word "science" is sometimes used to just say learning systematic knowledge, for example, library science or political science. But I think that in the context in which the word "science" is going to be used in this case, what we mean by "science" is what we would call natural science, sciences such as chemistry, physics, and astronomy. And natural sciences I think are best described as the systematic attempt to provide natural explanations for natural phenomena. Q. Are there rules for scientific inquiry? A. Yes, there are. Q. And what are these rules? A. Well, you just heard one of the rules in the definition of science, which is that science tries to provide natural explanations for natural phenomena. So one of the most basic rules of science is that we tend -- what we require, the practitioners of science seek their explanations in the world around us, in things we can test, we can observe, and we can verify. Now, there are certain rules of procedure, as well. And among those are that scientific inquiry must be open, that it must be subject to duplication, replication, test and examination by other scientists. For example, I could never publish a result saying I had made an observation on a particular protein without also telling people what my methods were and how I made that observation. And the point is to make my work and my observation testable. And then the final and sort of open rule basically is that science is always an activity in which everything in science is open to critical examination, replication, peer review, and discussion by other scientists. Q. Is this just a view held by Professor Miller? A. No, I don't think so. I think the way I have described science and the process of science would be generally held by most members in the scientific community. Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 649. Do you recognize this publication? A. Yes, sir, I do. Q. I note at the bottom it says, National Academy of Sciences. Now, this is an organization that we're going to be hearing about repeatedly. What is the National Academy of Sciences? A. Well, if my recollection serves me well, the National Academy of Sciences is an organization that was established by act of Congress, I believe when Abraham Lincoln was president, and it consists of the elite and most accomplished scientists in every scientific field. One of the greatest honors that an American scientist or, actually, even a foreign scientist, because we have foreign associate members in our national academy, one of the greatest honors that a scientist can receive is to be tapped for membership in the National Academy of Sciences. I believe the National Academy of Sciences is also charged with advising the president and the Congress on matters of scientific interest and importance. Q. Are the publications of the National Academy of Sciences something that are reasonably relied on by scientists in the field? A. Absolutely, yes. Q. I'd like to direct your attention to Page 27 of Exhibit 649. I've asked you before to highlight a passage on this page. Is that correct, Dr. Miller? A. Yes, you have. Other Links: Teaching About Evolution and the Nature of Science Online text of a book from the National Academy of Sciences. Evolution and the Nature of Science Chapter 3 of this book. What Dr. Miller read into the record came from here. Q. Could you please read for the record the highlighted passage? A. Be glad to. This is the opening of the third section of this book, and it opens basically by defining science. And it says, and I quote, Science is a particular way of knowing about the world. In science, explanations are restricted to those that can be inferred from confirmable data, the results obtained through observations and experiments that can be substantiated by other scientists. Anything that can be observed or measured is amenable to scientific investigation. Explanations that cannot be based on empirical evidence are not part of science. Q. Do you agree with that statement? A. I certainly do. Q. How long have these rules of science been in effect? A. I'm tempted to say forever, but I think certainly for the last 200 years of contemporary science, the notion that science -- in other words, all of the 19th Century and all of the 20th Century and now into the 21st -- the notion that science can only deal with empirical data, what we can see, what we can observe, and what we can measure, has been part of the common understanding of science in all people in all cultures. Q. So science doesn't -- these rules don't just apply in the United States? A. No, sir, they don't. I think science might be the closest thing we have on this planet to a universal culture, and these rules apply everywhere. Q. Why are these rules important? A. These rules are important because if you don't have these rules, you don't have science. The entire -- human beings are fallible, and I mentioned that science is a human activity. It's a systematic search for natural explanations for natural phenomena. And if you invoke a non-natural cause, a spirit force or something like that in your research and I decide to test it, I have no way to test it. I can't order that from a biological supply house, I can't grow it in my laboratory. And that means that your explanations in that respect, even if they were correct, were not something I could test or replicate, and therefore they really wouldn't be part of science. Q. So supernatural causation is not considered part of science? A. Yeah. I hesitate to beg the patience of the Court with this, but being a Boston Red Sox fan, I can't resist it. One might say, for example, that the reason the Boston Red Sox were able to come back from three games down against the New York Yankees was because God was tired of George Steinbrenner and wanted to see the Red Sox win. In my part of the country, you'd be surprised how many people think that's a perfectly reasonable explanation for what happened last year. And you know what, it might be true, but it certainly is not science, it's not scientific, and it's certainly not something we contest. So, yes, those rules certainly apply. Q. Does science consider issues of meaning and purpose in the universe? A. To be perfectly honest, no. Scientists think all the time about the meaning of their work, about the purpose of life, about the purpose of their own lives. I certainly do. But these questions, as important as they are, are not scientific questions. If I could solve the question of the meaning of my life by doing an experiment in the laboratory, I assure you I would rush off and do it right now. But these questions simply lie outside the purview of science. It doesn't say they're not important, it doesn't say that any answer to these is necessarily wrong, but it does say that science cannot address it. It's a reflection of the limitation of science. Q. Could you briefly tell us, how is it that scientists do their work? How is it that you approach a particular problem? A. There are probably as many ways to approach scientific problems as there are scientists. But I think one of the key questions, one of the key aspects of this is thinking of a question. Now, that's, in many ways, the hardest thing to do. But what we try to do is to look at the natural world and try to narrow down a specific question from the point of view that we can develop a very specific testable hypothesis about that question. And in many ways, that's the greatest art of being a scientist, because no one tells you how you come up with good questions. But a good question is one that is important, the result will be interesting to other people, other scientists, as well, it will shed light on a natural biological or physical or chemical process, and we can phrase a hypothesis about it in a way that we can actually devise a test. And once we frame that really good hypothesis, we do an experiment, we go into the field, we look for evidence, we do measurements, we make observations, and we try to gather the data that will be sufficient to confirm or refute the hypothesis. And if we confirm it, we don't consider it to be proven, you never prove anything in science, but we consider it to be supported, and then very often we go on and ask another tough question about the same hypothesis. If the hypothesis is refuted, we discard it, go back, think of a better idea. That's as close as I can come to a good description. Q. So after you have the hypothesis, after you've gone and done the experimentation or observation, is there something you do with the data after that? A. Oh, excuse me, I'm talking about the work of an individual scientist. And if you think you either have the data that refutes an important hypothesis or data that tends to support and confirm an important hypothesis, if you think this will be of interest to other people in the scientific community, you then gather up your methods, your procedures, your experimental data, might be photographs, might be diagrams, results, tables, gels that we run in the laboratory, something along those lines, and you put them into a scientific publication. You write a paper and you send that paper to a reputable, hopefully a prestigious, if you think it's important work, scientific journal, and you immediately subject it to peer review and criticism by your colleagues. Q. Now, is this peer-review process important? Tell us a little bit of how it works. A. It's exquisitely important. You don't have science without it. And the way in which it works is, for example, I will write up my research in the manner that I have just described and send it off, perhaps, to Nature or the Journal of Cell Biology or something along those lines. An editor at the other end will read my work, will consult, perhaps, with other editors, try to find three or four experts in the field who are knowledgeable about the kind of work I'm doing and the questions I'm asking, send it out for review. Those people will then examine the paper. They'll look for methodological flaws. Perhaps I used the wrong reagent, perhaps I used the wrong reaction temperature. They'll look for logical flaws. Perhaps the experimental results I got don't really mean what I think they mean. And they'll also look for novelty. And by novelty, if the work I'm doing just confirms a hypothesis that has already been abundantly confirmed, nobody really cares, and that's what I mean about novelty. They will then decide if my paper is absolutely fabulous and should go right into the journal or if it can be accepted in the journal if I make a few changes, corrections, do another experiment, or basically if I should be sent back to the drawing board saying, this is not worthy of publication in our journal. The Journal of Cell Biology, for which I served a term as editor, had a rejection rate of about 60 percent, which meant that six papers out of ten were simply sent back saying, we're not going to publish this. Q. So unless a theory meets these rules of science and has gone through these procedures of science, can it be accepted as a scientific theory? A. Well, you've actually jumped from sending a scientific paper in to what constitutes a theory and how can a theory be accepted. I have never done any research so grand that I would have described in any of those papers a new theory that I have. Hypotheses, yes, but theories are a whole other level of understanding. Theories are broad, useful, powerful generalizations that explain and unite a broad range of facts. Theories have to make testable predictions, because otherwise they're not useful as theories. If a theory is enunciated to explain a natural process, it has to make predictions that lead to testable hypotheses so that people can go into the laboratory, can make those tests, and can tend to confirm or refute the theory. Q. But if a theory does not meet these ground rules of science, testability, observability, they are not considered scientific? A. It's just not a scientific theory, that's correct. And my tongue-in-cheek explanation of the baseball playoffs last year falls into exactly that category. It's not a theory because it's not scientific and it's not testable. Q. Now, this nonscientific theory, does that mean its wrong? A. Oh, of course not. I also said, again, thinking about that silly example, a lot of people in my part of the country think that's absolutely true. Explanations that lie out of science can be true, but they're not scientific. And I think that applies to the sort of theory that you were talking about. MR. WALCZAK: Your Honor, I know, has indicated that we'll take periodic breaks, and this is actually a good breaking point for us. THE COURT: Yes, I think it's an opportune time for us to break. Let's break for a reasonable interval. We'll see what we'll do as far as the duration of the breaks as we go, but we'll probably take at least 20 minutes, I would say, so that people can have an ample break. We may take longer if we need to. So this will be our midmorning break, and we'll stand in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 1 (September 26), AM Session, Part 2 THE COURT: Mr. Walczak, you may continue. MR. WALCZAK: Thank you, Your Honor. BY MR. WALCZAK: Q. Dr. Miller, I want to shift gears. We just talked about the science and the nature of science, and I want to now move to the topic of evolution. What is evolution? A. You always ask good questions. Q. Thank you. A. Most biologists would describe evolution as a process of change over time that characterizes the natural history of life on this planet. Q. And are there certain core propositions to evolutionary theory? A. Yeah, I think there are, and I think basically there are three. And the first one is the observation that life really has changed over time, that the life of the past is different or was different from the life of the present, and that the natural history of this planet is characterized by a process of change over time. The second thing, the second core element, I guess, is the principle of common descent, and that is the notion that living things are united by a core of common ancestry, that living things, if you trace them back far enough, show common ancestors that gave rise to the many forms of life today. And the third core proposition and I think probably the simplest way to state it is the process that drove that change through time from common ancestors and common descent is driven by forces and principles and actions that are observable in the world today. And the key, therefore, is that we can understand how evolution works by looking at what's happening in the world around us today. Q. And is there a name for that force that drives the change? A. The force that drives the change, actually, there are many individual forces and processes. Many of them are united under the term of "natural selection." Q. Now, there's a gentleman named Charles Darwin who played some role here. I was wondering, who was Charles Darwin? A. Charles Darwin was a British naturalist who was born on February 12th, 1809. If memory serves me well, that's a better-than-average day for the history of humankind because Abraham Lincoln was born on exactly the same day. He lived in Great Britain, he studied natural history and studied theology, became a naturalist, traveled around the world on a British ship called the Beagle, made a number of very interesting observations during that trip and came back from that trip to think, to write, critique his ideas for many years, and then wrote a series of books which are the foundation of what we consider to be modern evolutionary theory. Q. And what was Darwin's contribution to evolution? A. Well, one of the -- I think the most interesting and oftentimes overlooked aspects is that the first core proposition of evolution, which is that life has changed over time, was actually appreciated well before Darwin was born. The great French naturalist Cuvier recognized that the fossils told a record of life in the past and that that record was a record of change, and that as life changed into the present, new organisms appeared and old organisms went extinct. So the process of change, what we sometimes today simply call the process of evolution, that was understood well before Darwin. What Darwin did for the first time was to propose a plausible, workable, and ultimately testable mechanism for the processes that drove that change, and that is the mechanism of natural selection. Q. And has evolutionary theory stood still since Darwin's time or has it evolved? A. It has -- nothing in science stands still, and that's true of evolutionary theory, as well. Charles Darwin lived and worked and wrote at a time when, for the most part, scientists were unaware of the existence of genes, of macromolecules, certainly of DNA, and a host of other tools and techniques by which we study biology today. And to me, as a scientist, the most remarkable thing about evolutionary theory is that as the science of biochemistry has developed, as the science of cell biology, genetics, molecular biology, and other elements of science have developed, all of these have fit beautifully into the general framework described by Darwin almost 150 years ago. Q. So the evolutionary theory draws on many branches of science? A. Yes, it does. Q. How has the emergence of modern genetics and molecular biology affected scientists' views of evolution? A. Well, genetics really is the first one and I think in some historical respects the most interesting within. Charles Darwin, towards the end of his life, was worried about something, and what he was worried about was that favorable characteristics that might appear in organisms might be blended away as they had to mate to reproduce. So if an individual showed up with a really good characteristic that could be favored by natural selection, its offspring might only have half of that characteristic because Darwin thought that the inheritance of organisms blended in their offspring, and the next generation a quarter and the next generation an eighth, and after a while, no matter how favorable the variation was, it would be gone. Well, the discovery of genetics, beginning with Gregor Mendel in the 1850s, suddenly answered Darwin's most profound concern because it showed that genetics, inheritance, is particulate. And what I mean by that sort of a jargon term in science is that our inheritance is controlled by individual units called genes which are passed from one generation to the next. And that solved Darwin's problem because it showed that inheritance is not really a blending and that these favorable characteristics can actually be preserved. So modern genetics, basically, we might say, came to the rescue of a potential problem in evolutionary theory. Things got better when molecular biology added the dimension of DNA and RNA, because for the first time we could understand how evolution could work right down to the level of the molecule. And in every respect, it provided a dramatic confirmation to that general framework. Q. I think maybe we should take a step back and maybe I can ask you to explain the whole concept of natural selection. What are we talking about here? A. Well, Darwin and other people were impressed at how much plant and animal breeders could influence the ultimate characteristics by selecting individuals from a breeding population, let's say of horses or rabbits that had a particular characteristic the breeder wanted and allowing them to breed. Plant breeders have done the same thing for years. This was the methodology of Luther Burbank when he developed all sorts of beneficial strains of plants. And Darwin was enough of a naturalist to realize that the same process of selection actually happens in nature. Darwin pointed out there's a struggle for existence, whether we like to admit it or not, and not all organisms are able to pass their genes on to the next generation. Those that do the best in that struggle for existence -- and it's not just a struggle to survive, it's a struggle to find mates, to reproduce, and to raise those offspring. So in many respects things that are very cooperative are important in this struggle. Darwin realized that those organisms that had the characteristics that suited them best in that struggle, those were the ones that were going to leave their characteristics in the next generation, and he realized that's pretty much what plant and animal breeders do, and therefore over time the average characteristics of a population could change in one direction or another and they could change quite dramatically. And that's the essential idea of natural selection. Q. And what Darwin didn't understand was exactly how that happened because he wasn't -- he didn't have the benefit of genetics at the time? A. The entire process depends scientifically on what that mechanism of inheritance is. Darwin didn't know it. He couldn't have known it. Nobody knew it at the time. And therefore you might say that when modern genetics came into being by the rediscovering of the work of Gregor Mendel, everything in Darwin's theory was at risk, could have been overturned if genetics turned out to contradict the essential elements of evolutionary theory, but it didn't contradict them, it confirmed them in great detail. Q. Now, are you able to give us some examples of how modern genetics has applied to evolutionary theory? A. Well, I can give you quite a few of examples. Would you like me to use a demonstrative that would be useful to the Court? Q. And you have, at my request, prepared a series of slides that will help you to explain this? A. Yes, I have, as a matter of fact. I thought that I would start illustrating this by looking at hemoglobin. Hemoglobin is the protein that makes your blood red. It's the oxygen-carrying protein found in red blood cells. And in the upper right-hand corner of the slide, there is a molecular diagram of hemoglobin. It's made up of four parts. Those parts are called polypeptides, but we can think of them essentially as four subunits. It has two copies of a part called alpha-globulin and two copies of a part called beta-globulin. Now, what modern molecular biology has enabled us to do is to look at exactly where the instructions are that specify these. And you'll notice that the beta-globulin -- excuse me, the alpha-globin instructions are specified on Chromosome Number 16 and the beta-globin instructions are specified on Chromosome Number 11. And as our genome does for many genes, we have multiple copies of these, so we have backups. We've got extra copies of the alpha-globin genes and extra copies of the beta-globin genes, and they have very interesting physiological functions, these multiple copies, which are not relevant right now and therefore we won't get into. But there's something very interesting about these, and it enables us to test evolution right down to the level of the molecule. And I want to point that out by looking at the beta-globin genes on Chromosome Number 11. If you could advance the slide, please. I've zeroed in on the six copies of the beta-globin gene sequence. Each of these copies is a set of instructions for how you build this polypeptide. Five of them work, but one of them doesn't. It's given the Greek letters psi, beta, and then the number one. And the psi-beta-1 sequence isn't a gene. It doesn't work. It's a pseudogene, and a pseudogene is recognized as a gene because it's so similar to the other five in its DNA sequence, but it has some mistakes. It's broken, and it has a series of molecular errors that render the gene non-functional. Now, I'd like to show you exactly what those molecular errors are in the next slide. This is a blow-up of the pseudogene. These are the portions that actually do the coding, if it was coded in red here. And you'll notice that there are six distinct mistakes in this gene. Now, I don't know if I really want to try the patience of the Court in terms of going into the details of molecular biology, but in a very simple way, the altered initiator means that the signal that exists at the front of the gene that says "copy me" is missing. And therefore RNA preliminaries, the molecule that copies genes, can't bind, and it never gets expressed. But even if it did get expressed, it has five other errors that would keep this, the RNA copy of this gene, from being translated. It's missing the start signal. It's got stop codons that would cause the synthetic apparatus to grind to a halt. It's just a mess. Now, the reason that this is important in evolution is actually very simple, and that is, these errors appear in a gene, they have no functional purpose. And you might ask yourself, what would I do, what would you do if we were to find another organism that didn't just have similar genes but also had a pseudogene in the same spot and had the same set of errors? Other Links: Plagiarized Errors and Molecular Genetics More information on shared errors and why they are evidence for evolution. There's no reason why evolution would produce a duplicate set of mistakes in two copies of things. It must mean that these two organisms are descended with modification from another organism that had the same set of mistakes. And if you go on to the next slide, what I'd like to show you are three organisms, the gorilla, the chimpanzee, and the human being that share the exact same set of molecular mistakes. Now, why is this significant? One of the core principles of evolution is common descent. One could always argue that because the three species that I've depicted on this slide are all African species, that's where they all come from, they're all primates and they all probably started out living in similar environments, that the functional parts of this gene locus, they might work the same. But you cannot argue that the mistakes should match. And the fact that all three of these species have matching mistakes leads us to just one conclusion, and that's the same conclusion that Charles Darwin predicted almost a century and a half ago, and that is that these three species share a common ancestor. Matching mistakes are evidence of common ancestry. Q. And are there other animals that share the same mistakes? A. Well, we actually don't know, because there are two great apes in which we're waiting on the genome sequence. Those are the orangutan and the Bonobo, pygmy chimpanzee. And if I had to make a friendly bet, I'd bet that they do. But other primates and other mammals, cats, dogs, horses, they don't have these mistakes. These mistakes are unique to the lineage that shows common ancestry of us and these other organisms. Q. Could you give us another example? A. Sure, I'm very happy to. The next slide, this is another test of the evolutionary hypothesis of common ancestry. We have, as I'm sure most people know, 46 chromosomes in our human cells. That means we have 23 pairs of chromosomes because you get 23 from mom and you get 23 from dad, so we've all got 46 total. We've got 23 pairs. Other Links: Comparison of the Human and Great Ape Chromosomes as Evidence for Common Ancestry A detailed look at some of the evidence that Dr. Miller is discussing here. Ken Miller's Cold (Chromosomal) Fusion Lawyer Casey Luskin writing in a pro-Intelligent Design blog tries to refute what Dr. Miller testified about human and ape chromosomes. Dog Bites Man Zoology graduate student Mike Dunford shows just how ignorant and fallacious Luskin's arguments are. Now, the curious thing about the great apes is they have more. They have, as you can see from the slide, 48 chromosomes, which means they have 24 pairs. Now, what that means, Mr. Walczak, is that you and I, in a sense, are missing a chromosome, we're missing a pair of chromosomes. And the question is, if evolution is right about this common ancestry idea, where did the chromosome go? Now, there's no possibility that that common ancestry which would have had 48 chromosomes because the other three species have 48, there's no possibility the chromosome could have just got lost or thrown away. Chromosome has so much genetic information on it that the loss of a whole chromosome would probably be fatal. So that's not a hypothesis. Therefore, evolution makes a testable prediction, and that is, somewhere in the human genome we've got to be able to find a human chromosome that actually shows the point at which two of these common ancestors were pasted together. We ought to be able to find a piece of Scotch tape holding together two chromosomes so that our 24 pairs -- one of them was pasted together to form just 23. And if we can't find that, then the hypothesis of common ancestry is wrong and evolution is mistaken. Go to the next slide. Now, the prediction is even better than that. And the reason for that is chromosomes themselves have little genetic markers in their middles and on their ends. They have DNA sequences, which I've highlighted in here, called telomeres that exist on the edges of the chromosomes. Then they have special DNA sequences at the center called centromeres, which I've highlighted in red. Centromeres are really important because that's where the chromosomes are separated when a cell divides. If you don't have a centromere, you're in really big trouble. Now, if one of our chromosomes, as evolution predicts, really was formed by the fusion of two chromosomes, what we should find is in that human chromosome, we should find those telomere sequences which belong at the ends, but we should find them in the middle. Sort of like the seam at which you've glued two things together, it should still be there. And we should also find that there are two centromeres, one of which has, perhaps, been inactivated in order to make it convenient to separate this when a cell divides. That's a prediction. And if we can't find it in our genome, then evolution is in trouble. Next slide. Well, lo and behold, the answer is in Chromosome Number 2. This is a paper that -- this is a facsimile of a paper that was published in the British journal Nature in 2004. It's a multi-authored paper. The first author is Hillier, and other authors are listed as et al. And it's entitled, The Generation and Annotation of the DNA Sequences of Human Chromosomes 2 and 4. And what this paper shows very clearly is that all of the marks of the fusion of those chromosomes predicted by common descent and evolution, all those marks are present on human Chromosome Number 2. Would you advance the slide. And I put this up to remind the Court of what that prediction is. We should find telomeres at the fusion point of one of our chromosomes, we should have an inactivated centromere and we should have another one that still works. And you'll note -- this is some scientific jargon from the paper, but I will read part of it. Quote, Chromosome 2 is unique to the human lineage of evolution having emerged as a result of head-to-head fusion of two acrocentric chromosomes that remain separate in other primates. The precise fusion site has been located, the reference then says exactly there, where our analysis confirmed the presence of multiple telomere, subtelomeric duplications. So those are right there. And then, secondly, during the formation of human chromosome 2, one of the two centromeres became inactivated, and the exact point of that inactivation is pointed out, and the chromosome that is inactivated in us -- excuse me, the centromere that is inactivated in us turns out to correspond to primate Chromosome Number 13. So the case is closed in a most beautiful way, and that is, the prediction of evolution of common ancestry is fulfilled by that led-pipe evidence that you see here in terms of tying everything together, that our chromosome formed by the fusion from our common ancestor is Chromosome Number 2. Evolution has made a testable prediction and has passed. Q. So what you're testifying here is that modern genetics and molecular biology actually support evolutionary theory? A. They support it in great detail. And the closer that we can get to looking at the details of the human genome, the more powerful the evidence has become. Q. I'd like you to direct your attention to Plaintiffs' Exhibit 127. Do you recognize this document? A. Yes, I have seen it before. I believe it's a newsletter produced by the Dover Area School District. Q. And, Matt, if you could highlight. I've highlighted a passage from the second page of the newsletter, and I would like you to read what has been highlighted. A. Sure. Quote, In simple terms, on a molecular level, scientists have discovered a purposeful arrangement of parts which cannot be explained by Darwin's theory. In fact, since the 1950s, advances in molecular biology and chemistry have shown us that living cells, the fundamental units of life processes, cannot be explained by chance. Q. Is that a true statement? A. I think neither of those two sentences is a true statement. Would you like me to explain why? Q. Please. A. Okay. The first point is the purposeful arrangement of parts. Science doesn't really deal with questions of purpose, value, and meaning. So to say that science has discovered a purposeful arrangement of parts puts science on the other side of this divide of empirical knowledge where it doesn't belong, so that certainly is not true. As I've just mentioned to you, the arrangement of chromosomes in our genome, the existence of molecular errors, actually fits evolutionary theory remarkably well, so that part of the sentence doesn't hold up, either. And then the second sentence, to any scientist who is extremely curious, it says, The fundamental units of life processes cannot be explained by chance. I completely agree. Natural selection is not a chance process. Evolution is not just random chance. And natural selection is the most unchance-like part of evolutionary theory. So stating that you can't explain something by chance is not equivalent to saying you can't explain it by evolution. Q. Now, is there research ongoing in this area, molecular biology and genetics? A. Oh, absolutely. In fact, it's moving so fast that it's difficult to keep up with it. Q. And, in fact, is there a very recent publication, peer-reviewed publication, that bears on this issue of common descent? A. Well, the answer to that is, there's more than one. And the one that comes to my mind right away is an issue earlier this month of the scientific journal Nature, which might be the most prestigious scientific journal in the world, which focused on seven or eight papers describing the complete genome analysis of the genome of the chimpanzee. Q. And if I could direct your attention to what's been marked as Plaintiffs' Exhibit 643, is this the cover of the publication to which you refer? A. Yes, that is the cover of the September 1st, 2005 issue of the scientific journal Nature. And you can see that the cover story is the chimpanzee genome. Q. Matt, if you could turn to -- I believe it's Page 69. Is this the article to which you are referring? A. Well, it's one of about seven or eight articles on the genome and its implications to which I refer. But this is the prime article that presents the chimpanzee sequence and points out some of the highlights of the sequence. So if one article in this large journal was said to be the cover story, the key article, this is it. Q. And why is this important? A. It's important because it introduces an enormous data set, the chimpanzee genome, that we simply didn't have before. And the title of the article I think actually tells you what you're going to find in here. Initial sequence, because we change these things as we get better data, initial sequence of the chimpanzee genome and in comparison with the human genome. These organisms, as the earlier demonstratives that I presented to the Court show, clearly show a common ancestry with us, but as any observation will tell you, they're not like us. So understanding how we are similar and how we are different from these organisms is a really important and exciting problem in biology. Q. Matt, could you highlight the first sentence. This is the first sentence of the article. Could I ask you to read this, Dr. Miller? A. Of course. And this is the introductory sentence to the article, and it reads, quote, More than a century ago Darwin and Huxley posited that humans share recent common ancestors with the African great apes. Modern molecular studies have spectacularly confirmed this prediction and have refined the relationships showing that the common chimpanzee, Pan troglodytes, and Bonobo, Pan paniscus or pygmy chimpanzee, are our closest living evolutionary relatives. Q. It says "spectacularly confirmed." Is that something you routinely find in scientific journals? A. I think you could read the journal Nature for several years and not see another use of the word "spectacular." It tells you that the authors of this paper are really excited about this data. And, to be perfectly honest, the entire scientific community was excited by the chance to compare this data with our own genome, and that warrants the use of the word "spectacular." Q. Dr. Miller, isn't evolution just a theory? A. Evolution is just a theory, in the same way that the atomic theory of matter is just a theory, the Copernican theory of the solar system is just a theory, or the germ theory of disease is just a theory. But theories, as I emphasized earlier, are not hunches, they're not unproven speculation. Theories are systems of explanations which are strongly supported by factual observations and which explain whole sets of facts and experimental results. Q. And how do you distinguish, say, a theory from a fact? A. A fact is a repeatable, verifiable observation or a result. So, for example, in the earlier demonstratives I showed, it is a fact that there is an altered initiator sequence on the beta-globin pseudogene. It's also a fact that there are five working copies of this gene on Chromosome Number 11. All of these are facts. We can test them, we can verify them, we can put them together. But facts by themselves don't tell us a whole lot. A very famous biologist once said that without theories to tie them together, biology is just stamp collecting. And what they meant by that was that the production of isolated individual facts is unimportant unless you can tie all those facts together in an explanatory framework, and what a theory is is just such a mechanism. So evolutionary theory takes the sorts of facts that I have pointed out in the last few slides that the Court has looked at and ties them into a coherent whole by common explanation, for example, by the hypothesis of common descent. Q. So the term "theory" has a particular meaning within science distinct from everyday usage? A. Absolutely. And when we're out on the street and we say, I have a theory on what the best way to drive to Pittsburgh is given the traffic or I have a theory on whether or not it's going to rain this afternoon, we mean, in ordinary conversation, a hunch, speculation, a guess. When we say "theory" in science, we mean a broad, overarching, explanatory explanation that's very strongly supported by fact and by factual evidence and that ties all of this together in an explanatory framework that helps us make testable predictions and testable hypotheses. And if it doesn't do that, it's not a scientific theory. Q. And is your understanding of theory and fact, as those terms are used in science, reflected by the scientific community? A. Oh, I think it's fair to say that the understanding that I've expressed here in the Court today is exactly the understanding possessed by the members of the scientific community elsewhere. Q. I'd like to direct your attention to Plaintiffs' Exhibit 649. And this is, again, the National Academy of Sciences publication? A. Yes, sir, it is. Q. And if you could turn to Page 5. And, Matt, if you could pull up the highlighted passage. Dr. Miller, could you read the highlighted text, please, from Page 5 of this publication? Other Links: Why Teach Evolution? This is where the text Dr. Miller read into the record came from. A. Be glad to. Quote, Ironically, facts in science often are more susceptible to change than theories, which is one reason why the word "fact" is not used very much in science, unquote. Q. So is evolution a theory or a fact? A. In English, we often use the word "evolution" to refer to two different things. We often use the word "evolution" to refer to the fact that life has changed over time. And in that respect, evolution is as much of a fact as anything else we know about the natural history of this planet. However, the use of "evolution" as a theory is basically used to describe the mechanisms by which those changes took place. And in that respect, evolution is, indeed, a theory because it is a powerful, useful, and predictive explanation of a whole range of scientific facts. Q. Is evolutionary theory, including natural selection and descent with modification from a common ancestor, generally accepted by the scientific community? A. It is overwhelmingly accepted by the scientific community. Q. I'd like to direct your attention, staying on the same publication from the National Academy of Sciences, if we could turn to Page 16. Now, I believe you testified earlier that the National Academy of Sciences is probably the most prestigious scientific association in the country? A. I think it's probably the most prestigious scientific association in the world. Q. And have they taken a position on whether evolution is accepted? A. Yes, they have. Q. Matt, could you please highlight. Dr. Miller, I'd like you to read the highlighted passage from Page 16, please. Other Links: Major Themes in Evolution Agian, where Miller is reading from. A. Sure. Quote, The concept of evolution through random genetic variation and natural selection makes sense of what would otherwise be a huge body of unconnected observations. It is no longer possible to sustain scientifically the view that living things we see today did not evolve from earlier forms or that the human species was not produced by the same evolutionary mechanisms that apply to the rest of the living world, unquote. Q. I'd like to now direct your attention to Plaintiffs' Exhibit 192. Do you recognize this publication? A. Yes, I do. Q. And who publishes this? A. This is a booklet that was published a few years ago by the National Academy of Sciences. Q. And is this more recent than the other publication that we were just referring to? A. I believe it is. I think this was published -- you'll correct me if I'm wrong -- in 1999 or in 2000. Q. Matt, could you go to Page Roman Numeral VIII, please, and if you could highlight the text. Dr. Miller, I'd like you to read from this National Academy of Sciences publication the highlighted text, please. Other Links: Science and Creationism: A View from the National Academy of Sciences, Second Edition The publication of the National Academy of Sciences detailing its position of science and creationism. Preface A statement by cell biologist and president of the National Academy of Sciences, Bruce Alberts. Miller read part of this into the record. A. Sure, I'd be glad to. Quote, The concept of biological evolution is one of the most important ideas ever generated by the application of scientific methods to the natural world. The evolution of all the organisms that live on earth today from ancestors that lived in the past is at the core of genetics, biochemistry, neurobiology, physiology, ecology, and other biological disciplines. It helps to explain the emergence of new infectious diseases, the development of antibiotic resistance in bacteria, the agricultural relationships among wild and domestic plants and animals, the composition of the earth's atmosphere, the molecular machinery of the cell, the similarities between human beings and other primates, and countless other features of the biological and physical world. As the great geneticist and evolutionist Theodosius Dobzhansky wrote in 1973, quote, Nothing in biology makes sense except in light of evolution, unquote. Q. Do you agree with that, Dr. Miller? A. I agree with that wholeheartedly. Q. You testified earlier that the American Association for the Advancement of Sciences is the largest association of scientists in this country. Do you know whether they have taken a position on whether evolution is accepted in science? A. Yes, sir, they have taken a position. Q. I'd direct your attention to Plaintiffs' Exhibit 654. Do you recognize this? A. Yes, I do. This is an online feature published by the American Association for the Advancement of Science, and it has a series of questions and answers on evolution and intelligent design. Q. And do you know whether the statements contained in here are supported by the leadership of the American Association for the Advancement of Science? A. It is my understanding that they are. Q. Matt, if you could highlight the text, please. The question that's posed is, is there evidence against contemporary evolutionary theory? And, Dr. Miller, if you could read the answer from the American Association for the Advancement of Science. A. Sure. The answer reads, quote, No, there are still many puzzles in biology about the particular pathways of the evolutionary process and how various species are related to one another. However, these puzzles neither invalidate nor challenge Darwin's basic theory of descent with modification, nor the theory's present form that incorporates and is supported by the genetic sciences. Contemporary evolutionary theory provides the conceptual framework in which these puzzles can be addressed and points towards a way to solve them. Q. End quote? A. End quote. Thank you, Counsel. Other Links: Voices for Evolution Statements by organizations in favor of evolution including numerous scientific organizations. Q. Are there other associations or organizations of scientists that have taken a similar view on the acceptance of evolution? A. Yes, there are, literally scores of them. Q. And can you name a few? A. I certainly can't give you an exhaustive list, but the American Institute of Biological Sciences, the American Society for Cell Biology, the American Society for Biochemistry and Molecular Biology, the Geophysical Society of the United States, and the American Society of Microbiology, just to name a few. Q. Are you aware of any scientific societies, academies, or organizations that have taken a contrary position and said that evolutionary theory is not firmly established? A. I have to tell you that to my knowledge, every single scientific society in the United States that has taken a position on this issue has taken a position against intelligent design and in favor of evolution. Q. Are you aware of any controversy in the scientific community over evolution? A. Yes, I am. There are controversies in all fields of science, and what I mean by that are points that are held in dispute. For example, the evolution of sex is an enormous and controversial issue in biology. Q. Sex as in gender? A. Sex as in gender, as to why, for example, everybody does it, not just talking about us primates, but also oak trees and yeast and all sorts of organisms, as to where gender comes from in terms of sexual reproduction. It's a very important issue within evolutionary theory and certainly not an issue that is solved. There is also enormous controversy within evolutionary theory on the relative values and weights to give to forces such as natural selection, sexual selection, genetic recombination, horizontal gene transfer, and so forth. But I think the relevant and the interesting point is that there is no controversy within science over the core propositions of evolutionary theory, there is no controversy over whether or not evolution took place, and there is no controversy with respect to the proposition that evolution provides the most useful and invaluable way in which we can extend our understanding of living organisms. Q. Is evolution just a historical process, or is it still something that's being used today? A. That's an interesting question, and I've often been approached by people who have told me, well, evolution is a just-so story about our past, and it has no scientific significance in the world today, it's unimportant. I can't think of any statement that I would disagree with more. Q. Well, let me tell you that an expert for the school district in this case, Professor Scott Minnich, has said that evolution plays little, if any, role in experimental science and that it may actually impede science in the arena of drug-resistant research. A. I believe, with all due respect, that Dr. Minnich is profoundly mistaken. And drug resistance is a very good example. All of -- any science -- I'm sorry, any physician who develops a specialty in the treatment of infectious diseases had better know about evolution. And the reason for that is, disease therapy, whether it's antibiotic therapy or whether it's antiviral therapy of the sort, for example, that is used to extend the lives of patients with AIDS, any therapy in these infectious diseases is predicated on a profound understanding of the evolutionary processes by which the bacteria or the viruses acquire resistance to the agents that are used against them. And if one doesn't understand the evolution of resistance, one is not going to be a very effective physician. And that's not the only area. Whole areas of drug research and development use what are known as genetic algorithms or evolutionary methods. And what these scientists often do is to set up in a test tube an evolutionary process where they allow incremental changes to be made automatically by an organism, by replicating molecule, to allow a kind of natural selection in the test tube to develop a better drug than anyone could design on their own. So by mimicking Darwinian evolution, people often in the laboratory will use that as a research tool. It's also worth noting that an understanding of evolution is absolutely essential in other areas, as well. In agricultural, for example, the use of genetically modified crops in areas around the United States -- and much of the food that we eat depends upon genetically modified crops -- the use of the genetically modified crops becomes ineffective if the farmers employing them don't understand the evolutionary mechanisms by which insects can evolve resistance to the insect-fighting proteins which are engineered into the plants. So therefore very careful precautions have to be taken to prevent the process of evolution from taking place. So I think evolution is at the core of discovering the biological sciences. And there's really no better example of that than that issue of Nature that we highlighted earlier and used as one of the exhibits. Virtually every paper in there uses evolution as a tool to explore what our genome does, what the ape genome does, and how the differences between them make us unique as individuals and organisms. It turns out to be a hard-working theory which is at the core of biological discovery and biological exploration. Q. Is evolution antireligious? A. I certainly don't think so, and I devoted a whole book to arguing why I didn't think it was. Q. Don't some scientists invoke evolution in their arguments to say that, in fact, science and evolution is antireligious, it's anti-God? A. Yes, they do. And I can certainly think of any number of specific examples from distinguished evolutionary biologists like Richard Dawkins or philosophers who have written about evolution like Daniel Dennett or William Paley. But as I said earlier, it's very important to appreciate that every word that comes forth from the mouth of a scientist is not necessarily science. And every word that one says on the meaning or the importance of evolutionary theory is not necessarily scientific. Richard Dawkins, for example, has been eloquent in saying that for him, understanding that life and the origin of species has a material cause frees him from the need to believe in a divine being. I don't know if I've been as eloquent as Richard Dawkins, but I have worked very hard in my own way to say that for me, the notion that we are united in a great chain of being with every other living thing on this planet confirms my faith in a divine purpose and in a divine plan and means that when I go to church on Sunday, I thank the creator for this wonderful and bounteous earth and for the process of evolution that gave rise to such beauty and gave rise to such diversity that surrounds us. Those are my sentiments, in the same way that Dawkins' are his. But I'm not speaking scientifically, and I'm not speaking as a scientist, and that's, I think, the critical distinction. Q. So you wrote a whole book exploring this intersection between science and faith? A. That's correct. Q. And is any of that kind of discussion found in your high school biology textbook? A. No, of course not. Q. Why? A. Because it's not scientific. And I've made the point earlier that just when you say something is not scientific doesn't mean it's not important, doesn't mean it's not true, doesn't mean it doesn't concern something that you really and deeply care about. And I deeply care about my own religious beliefs and my faith, and I also deeply care about science, and I wanted to explain to a general audience how I understand the intersection of those two beliefs, not just to reconcile them, but to confirm and enhance both beliefs. Now, I believe in that very strongly, but I certainly recognize that my views on this are not science and they are not scientific. My coauthor, Joseph Levine, who also is a religious person, I have to tell you, has different views of faith, belongs to a different faith, and follows a different religious tradition than I do. Joe and I both have enormous respect for religion. We both believe that the evolutionary theory is fully compatible with our different religious beliefs, but we also recognize that our religious beliefs are not scientific, that they are philosophical, theological, and deeply personal, and, as such, they don't belong in a science curriculum, and they certainly don't belong in a science textbook. Q. And they're not found in your high school science textbook? A. Definitely not. Q. I want to switch gears here again to the topic of intelligent design. What is intelligent design? A. As it has been explained to me, intelligent design is the proposition that some features of living things are too complex to have been produced by the process of evolution and therefore they must be attributed to the creative work of a special intelligence or designer who creates these pathways, these genes, and these organisms and operates in ways that stand outside of nature and therefore by mechanisms which cannot be scientifically investigated. Q. Who is the designer? A. The advocates of intelligent design, over the last ten years, have refused to say. But I have to tell you that when I debated scientific creationists in the early 1980s, they were very fond of saying that life has a design and that design implies a designer and that designer is the creator, it is God. Q. I'd like to direct your attention to Plaintiffs' Exhibit 124. Do you recognize this document, Dr. Miller? A. Well, I recognize the last four paragraphs of the document. The first time I saw the rest of the document was in our pretrial discussions at the law offices yesterday. So now I recognize it. But until yesterday, I hadn't seen the whole document. Q. And to your knowledge, what are the last four paragraphs there? A. The last four paragraphs, which I certainly recognize, are the administrative statement which was read to students in Dover High School, I believe earlier this year, in concordance with the school board's intelligent design policy. Q. Matt, if you could highlight the third paragraph. Could you please read the highlighted text? A. Sure. Quote, Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book Of Pandas and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves, end quote. Q. Are you familiar with this textbook, Of Pandas and People? A. Yes, sir, I am. Q. And, in fact, is that the book you were debating the first time you debated Michael Behe back in 1995? A. Yes, that is the book. Q. To your knowledge, is Pandas representative of intelligent design thinking? A. I believe that it is. It certainly is put forward as an example of a textbook which had advanced the idea of intelligent design. I am sure that there are people within the intelligent design community who might hold slightly different positions on certain isolated issues from Pandas, but I think in general the arguments made in Pandas are representative of intelligent design. Q. Now, one name that's going to be coming up in this trial, and, actually, the gentleman will be testifying for the school district, is Michael Behe. Are you familiar with his works? A. Yes, sir, I am. Q. And are his ideas consistent with what is represented in Of Pandas and People? A. The answer to that is very much so. In fact, as I read Of Pandas and People, from our experience in the debate, which was in 1995, about a year later a book was published called Darwin's Black Box by Dr. Behe. And when I read through the pages of Darwin's Black Box, I was struck by how many of the arguments used against evolution that are found in Of Pandas and People are also used in Darwin's Black Box. And the one that really stuck in my mind was the discussion of the blood clotting cascade in both Dr. Behe's book and in Of Pandas and People. It struck me as essentially -- the two discussions struck me as essentially identical. Q. We're going to come back to Dr. Behe in a little while. Let's focus now on the book Of Pandas and People that's referred to in the four-paragraph statement. If we could turn to Page 150. And Pandas is Plaintiffs' Exhibit 11. And Page 150 is part of the glossary. I'd like you to read for us the highlighted language, which is the Pandas definition of intelligent design. A. Sure. Quote, Any theory that attributes an action, function, or the structure of an object to the creative mental capacities of a personal agent, period. In biology, the theory that biological organisms owe their origin to a preexistent intelligence, unquote. Q. Let's take those sentences one at a time. The first sentence, to your mind, does that accurately describe intelligent design as you understand it? A. I certainly think that it does. In fact, if one does a library search on intelligent design, it will return a large number of engineering, graphic design, and other articles about the intelligent design, let's say, of the courtroom or the intelligent design of a ventilation system or the intelligent design of a microprocessor. So it is certainly true that the term "intelligent design" can be used in the context of a human designer designing an apparatus, putting together a message, and so forth. So I think that's a perfectly accurate statement. Q. How about the second sentence? A. The second sentence says, In biology -- and I believe this is the context that is important in the courtroom today -- biology, intelligent design is the theory that biological origins owe their -- excuse me, biological organisms owe their origin to a preexistent intelligence. And I think that is exactly what intelligent design means. So this is a good glossary and this is a very good definition, because it indicates that organisms originated from the creative power of a preexisting intelligence, and that's a classic doctrine which is known as "special creation." By definition, that creative force has to have intelligence, takes intelligence to create, and that's exactly what this glossary definition says. Q. What is the argument in Pandas to support this idea of an intelligent designer? A. Well, I believe the argument in Pandas that supports -- that is used to support the idea of the intelligent designer takes many forums. For example, Pandas looks at the fossil record of natural history of life on this earth, and it says every time we see the sudden appearance of a new or different or novel organisms -- organism, that must be the hand of the designer. That's a classic example of special creation. Pandas also says anytime we see a complex biochemical system made up of many different interlocking parts, that can only be explained by the actions of an intelligent designer. And Pandas also states that living systems contain complex biological information. And by analogy, since information in the real world -- excuse me, information in human society, in telephone books, in texts, perhaps in the arrangement of transistors in a microprocessor, since that kind of information requires human intelligence, then the information which is in a biological system must have had an intelligence to put it there, too. Those are -- I'm sure there are other detailed arguments, but those are the general categories by which Pandas makes this argument. Q. And Pandas does address issues of science, issues of biology, does it not? A. Yes. Pandas, in every one of its six chapters, sections, excursions, deals with biological organisms, with the question of biological origins, and also with life processes. So it's a book about biology, that's correct. Q. And in your estimation, is the treatment of science, of biology, by Pandas accurate? A. I think the treatment of biology by Pandas is inaccurate and in many respects downright false in every section of the book. Q. Are you able to give us some examples about some of the errors that are contained in Of Pandas and People? A. Sure, I'd be very happy to. My understanding is that you will call some other witnesses who will testify about other errors, but I will certainly be happy to talk about a few that are in my own area of work. Q. And at my request, have you prepared a couple of slide demonstrations to help you explain these errors in Pandas? A. Yes, I have. Q. If we could have molecular trees in Pandas. Could you tell us what this is, Dr. Miller? A. Yes. What you see on the slide now is the cover of Of Pandas and People and two quotations from various parts of what is known as Section 6 of Pandas, which is the section on biochemical similarities. And with your permission, with the Court's permission, I'll read both of those. THE COURT: You may. THE WITNESS: The first one is a quotation from Page 36. And what it says is, quote, When the measurements of the similarities between proteins are put side by side, the pattern that emerges contradicts the expectations based on Darwinism, unquote. I should add the emphasis, the boldface on this is mine, it's not from the original. Other Links: Sequences and Common Descent A good explanation of what is wrong with cytochrome c argument used by Pandas which was first popularized by Michael Denton. That point of contradicting what it calls Darwinism or Darwinian expectations is made on the next page, Page 37. Quote, Notice that the cytochrome c of this insect, the silkworm moth, exhibits the same degree of difference from organisms as diverse as humans, penguin, snapping turtle, tuna, and lamprey. The reason this finding is so surprising is that it contradicts the Darwinism expectation. And, once again, the emphasis is mine. So Pandas, on these two pages, says that when you look at the biochemical similarities between organisms, it tells students those similarities contradict the expectations of evolution. In other words, evolution is wrong. Can we look at the next slide, please? What you see in this diagram is a table, a data table of biochemical similarities from Pandas, and I'm flipping through my own copy so I get the proper reference here. The table appears on Page 37, and I have placed a quotation from Page 37 on the slide. And referring to this table of differences between 17 organisms, Pandas tells students, quote, Darwinism would predict a greater molecular distance from the insect to the amphibian than to the living fish, yet greater still to the reptile and greater still than that to the mammal, yet this pattern is not found, unquote. And, again, the emphasis is mine. So what it tells students is, look at the data. That data contradicts the Darwinism expectation. So the message is not subtle, it's very clear, Darwinism is wrong, what it refers to as Darwinism is wrong, and this table tells you something else. That's the message from Pandas, and that's what they tell students. May we look at the next slide, please? The next slide shows a diagram, and I apologize to the Court for not having this on the slide itself, but the diagram that you see here is from Page 38 of Pandas, and the quotation that I'm using which refers to this phenomena is actually from Pages 139 to 140. And it refers to the same phenomena. Now, what the diagram shows is the cytochrome c, which is a protein found in all living organisms, essentially -- it's a very important protein -- it compares the sequence of cytochrome c of the carp, of a fish, and it says that the carp cytochrome c differs from that of the bullfrog by 13 percent, by that of the snapping turtle also by 13 percent, carp to the chicken 14 percent, carp to the rabbit 13 percent, carp to the horse 13 percent. In other words, it tells students there's the exact same difference between cytochrome c in a fish and an amphibian, a reptile, a bird, and two representative mammals. In other words, they're all the same distance apart. Now, why is that a problem for evolution, according to Pandas? The quotation explains that. It tells students to use the classic Darwinian scenario, amphibians are intermediate between fish and other land-dwelling vertebrates, therefore analysis of their amino acid should place amphibians in an intermediate position, but it does not. In other words, that fish should be closer to the amphibian than it is to the turtle, much closer than to the chicken, and much closer still than that to the horses. That's what Pandas tells students. Yet the fact that they're all the same distance apart means that the Darwinian, the evolutionary expectation, is contradicted by the data. And that is the message that Pandas tells students, any student who might use it. Go to the next slide, please. This is not an isolated quotation. This is the entire theme of this particular section, which is one-sixth of the book, which is that evolution has it wrong on molecular similarities. Here I've gone to Page 139, which is in the excursion or the more detailed section of the book. I've reproduced a facsimile of the page. This time it compares the dogfish shark and its cytochrome c to six different organisms. And basically this chart says they're all about the same distance from the shark. And then it says, instead of a progression of increasing divergence, each vertebrate sequence is equally isolated from the cytochrome sequence for the dogfish, unquote, from Page 139. As a result of all this data, what Pandas then tells students -- and this is a textbook intended to be used in classes -- quote, In this and countless other comparisons, it has proved impossible to arrange protein sequences in a macroevolutionary series corresponding to the expected transitions from fish to amphibian to reptile to mammal, unquote. So, in other words, all these data contradict the prediction of evolution. That is the message of Pandas on page after page and diagram after diagram. Now, the question that I think anybody using this book might want to consider is, is that true? Is that what the data actually show? Can I have the next slide, please? Remember the central claim, and this slide reproduces the diagram I have already shown from Page 37 on Pandas. And Pandas claims that finding the same molecular distance between a fish and these organisms contradicts evolution. The reality of the situation is that it does nothing of the sort. Standard evolutionary relationships, which have been known for decades, between these organisms, a mammal, a bird, a reptile, an amphibian, and a fish, actually show that all of these organisms share a common ancestor at an equal molecular distance. And what that means is, the frog should be just as far removed from that common ancestor as the horse should be. So therefore, when we compare a fish today, the distance from fish to mammal should be the same as the distance from fish to amphibian. BY MR. WALCZAK: Q. I'm sorry, Dr. Miller, could you explain how, on the diagram on the lower right, how do you measure that? How does a biologist or a scientist read that? A. Fair enough. What this diagram is intended to show is molecular distances between these organisms, in other words, how much their cytochrome c's differ in terms of times since a common ancestor. So in the chart the organisms that are pretty close together are the chicken and the turtle, and they share a recent common ancestor. So we shouldn't be surprised. Q. I'm sorry, is the common ancestor where you have the Y? A. Thank you very much for asking that. The common ancestor is at the intersection point right there, which I am now attempting to wave the pointer around. It is at the Y where these two diagrams join. So the relevant comparison here is that all five of these organisms should be, in molecular terms -- all four of these should be equally distant from the fish since the distance all the way down to the common ancestor of all vertebrates predicted by common descent is exactly the same. And, incredibly, that is what the data actually show, which is an equal distance from the fish for all the other vertebrates, and that actually doesn't contradict evolution, it provides strong support for it. But students using Pandas would misunderstand this point completely. May I have the next slide? Now, one might ask whether or not, since Pandas is -- I think is -- your opposing counsel might have mentioned in the opening statement -- a little out of date, whether or not Pandas can be forgiven this mistake, because, after all, it was published in 1993, and, as I emphasized, a lot has happened since then. What I have placed on the left-hand side of the slide is my rendering of the proper relationships between these organisms supported by data, and on the right-hand slide I have placed a figure from a paper published by Fitch and Margoliash in 1967, 38 years ago, showing molecular similarities based on cytochrome c. Now, the Fitch and Margoliash picture, as you can see, is much more detailed than the simple one that I included because it includes more organisms. But you'll also note that the molecular tree formulation of diagram -- of the diagram shows exactly what I have been pointing out, which is that one does not expect a progression from one organism to another, as Pandas tells students, but one expects a deepening molecular tree so that the relationship of a fish to the other organisms, which are highlighted here in little red boxes, should be the same for every one of these organisms to the fish. Q. And since 1967, has science contradicted that? A. Science not only has not contradicted it, but it has confirmed this pattern in one protein and one gene after another. Now, it's worth noting that one of the things that scientists have noticed is that the rate of evolution seems to differ in one gene from another. So sometimes the pace of change is quicker, sometimes the pace of change is slower. But the ultimate pattern of change, with very, very few exceptions, supports the pattern that you see here. And there's a final point that is worth making. And that is, one might ask, even though this paper appeared 38 years ago and clearly the authors of Pandas should have known about this, is this recent, is this formulation of evolutionary descent, is this something just in the molecular age, that it's brand-new, or is this the core understanding of evolution since the first time the idea was formulated? And the last slide that I have in this series will make that point. This is my formulation of the tree of -- Q. I'm sorry, that's in the upper left-hand corner? A. Thank you very much. The upper left-hand corner of the slide is my formulation, a very simple diagram of the proper relationships between these species. The right-hand side of the slide shows the molecular tree sketched out from Fitch and Margoliash, the paper published in 1967. And, again, the question I pose before the Court is, is this a new idea of relationships just in the molecular age? I have here a diagram, it's the only figure from the Origin of Species published by Charles Darwin in 1859, and it shows an almost exact match of the tree concept. So any person writing or pretending to teach students about evolution should be aware of the fact that evolution, since its very formulation by Charles Darwin, has held to the idea of the tree as the ancestorial model. And if you could advance the animation in this slide, whereas what Pandas has done is to argue that a straight line progression like that is actually what is expected. That is a -- either a misunderstanding or a deliberate misinforming of students about the nature of evolutionary theory. And what I wrote on this slide is, Pandas misleads students as to the actual predictions of evolutionary theory by pretending that evolution predicts a linear sequence like that. And as I've shown the Court, going back to Charles Darwin, that isn't what it predicts. Q. Do you have another example of what we might call an error or a misrepresentation of evolutionary theory that is contained in Pandas? A. I can certainly point to quite a few. I believe that's the last demonstrative that I have prepared from Pandas. Is that correct, sir? Q. Yes. If we could have the blood clotting test. A. Okay. Sorry. I had forgotten that I had prepared these demonstratives. Pandas also, in their discussion of molecular similarities, talks about what is known as the blood clotting cascade. And in this particular case, all of us -- hopefully all of us in the courtroom have blood that clots properly. And what that means, of course, when we cut ourselves, we don't just bleed and bleed and bleed and bleed, but that cut eventually seals with a blood clot. That's, in many respects, even more important inside our body, because when we get a bruise, that actually is a result of broken blood vessels, and if that didn't close with a clot, we'd be in serious trouble. Now, blood clotting is, biochemically, an enormously complicated process. And I have placed a diagram of some of the elements of the clotting pathway on the upper left-hand corner of the slide. It's a diagram that I drew from the Internet. It's not from any exhibits in the court here. It's not from Pandas. It's the sort of slide -- if people in the court are awed by the complexity of this slide, I would assure you that this is a subject that is used to torture biochemistry students at the undergraduate and graduate level. Everyone agrees that this is complicated. In the lower right-hand corner, there is a scanned electron micrograph of a red blood cell caught in a clot. And the action of this pathway produces a crosslink protein known as fibrin, which produces a meshwork which actually stabilizes the clot and helps blood to stop flowing. Now, I'm going to have to stand up so I can see the slide properly. Is that all right, Your Honor? I'll just talk loud enough so hopefully it will be picked up. Pandas describes this system, and on Page 141, and I quote, it tells students, As we shall see, such interactive systems as illustrated here by the mechanism for a blood clotting are very strong arguments for intelligent design and are virtually impossible to explain in terms of Darwinian evolution, unquote. Now, it's interesting to look into Pandas and say, why is it that this is an argument for design and impossible to explain by evolution? If you could go to the next slide, please, I'd appreciate it. Here is a page from Pandas describing the blood clotting cascade and a diagram of the cascade and two quotations from Pages 145 and 146. Here is the essence of the argument that students are given in Pandas. From Page 145, quote, Only when all the components of the system are present and in good working order does the system function properly, unquote. Later in the page and going onto Page 146, it talks about the various proteins in the clotting pathway, and it says, quote, Some of them -- these are the clotting proteins -- share discrete regions of their sequences with some others. Does that mean that they derive from one another? It may. But consider that even if this were the case, all of the proteins had to be present simultaneously for the blood clotting system to function, unquote. And the emphasis here is mine. So the argument made by Pandas is that the reason this is an example of design is because it's a multi-part system, and all of the parts have to be put together, presumably by a creator/designer before the system will work. Can I have the next slide, please? Well, that's a scientific statement in the sense that it's a claim that all the parts have to be present for the system to work. And because that is a scientific claim, we can investigate it scientifically and see if it is valid. What I have placed on this slide is my own representation of the blood clotting cascade, which I blew up a little bit to try to make it large enough for the Court to see and to try to emphasize the points that I need to point out to the Court at this point. A standard and simple and straightforward scientific test of the claim that all parts must be present for this to work is simple. Eliminate one of the parts, see if the blood will clot. If it won't clot anymore, the claim might be right. If it will clot, the claim could be wrong. Well, fortunately nature has actually done that experiment for us. And if you could advance the slide, I'm going to show right now, essentially here's the pathway, and I'm going to propose an experiment which is that we eliminate one of the important factors known as factor 12. That's right here. So there's my experiment. You can do this very easily on PowerPoint, much easier than you can do in the laboratory. We have just eliminated factor 12, and the question now before the Court is, will blood clot or will it not? Advance the slide, please. It turns out that whales and dolphins have done this experiment for us already. Whales and dolphins, in 1969, well before Pandas was published, were shown to lack factor 12. And the slide contains a reference to an article by Robins, Kasting, and Aggeler from Science Magazine, Volume 166, Page 1420, 1969. And you will note a quotation from the abstract of this article saying, The dolphin intrinsic cascade lacks factor 12, unquote. Now, this is from ancient history, as far as we molecular biologists might be concerned today, because 1969 is pre-molecular. So one might wonder, has that result held up? Also in the lower left-hand corner of the slide I have pointed out that a paper published in 1998 by Semba, et al., confirms using genome analysis, that whale Hageman factor 12 basically is now a pseudogene in the whale genome. That's why it is not produced. It is, indeed, missing from the clotting cascade. Whales face many problems on this planet. They're overhunted, they're overfished, but they don't have any problems with their blood clotting. So blood clots just fine, despite missing the factor. So the scientific prediction from Pandas turns out to be wrong. Q. And the prediction was -- this was known in 1969 is what you're saying? A. Absolutely, that's correct. So certainly the people writing it should have known. But interestingly, in recent years, you might say the situation has gotten worse. Q. I'm sorry, worse in what sense? A. Worse in the sense that the case that Pandas is trying to make has become even farther removed from scientific reality. Can I show the next slide, please? Here again is my representation of the various components of the blood clotting cascade. And this time I'd like to propose that we take away not one part, but three. If you'd advance the slide, please. The proposal is that we take away the three parts which are known as the contact phase system. Now, that includes factor 12, which we talked about a second ago, but also factor 11 and also the factor that catalyzes the conversion of 12 to the active form. Advance the slide, please. Those are the three parts that I propose eliminating. And advance it one more time, please. There they go. They're gone. It turns out these three parts are missing in a vertebrate known as the puffer fish. And I have placed in the left-hand part of the slide a reference to a paper Jiang and Doolittle, 2003. The title of the paper is, The Evolution of Vertebrate Blood Coagulation as Viewed from a Comparison of Puffer Fish and Sea Squirt Genomes. It appeared in the Proceedings of the National Academy of Sciences, a very eminent scientific journal, Volume 100, Page 7527. And the relevant point here is that they are missing three parts of the system and their blood clots perfectly well. Should we -- Go ahead, a question? Q. So the prediction in Pandas and what Pandas teaches students has, in fact, been invalidated, refuted by the scientific evidence? A. It was refuted by the scientific evidence in 1969 that was confirmed by genome studies of the whale, and it has been further refuted by Jiang and Doolittle's study of the contact phase system. Q. I'd like to go to the third example of what we might consider significant errors or representations contained in Pandas, and that is the concept of new biological information. I was wondering if you could explain what Pandas says about this and then talk a little bit about the science. A. May I ask the counselor if we have demonstratives on this? THE COURT: You may, certainly. THE WITNESS: Do we have a demonstrative on this one? BY MR. WALCZAK: Q. We have a copy of Page 7 from Pandas. A. Okay. That would be just fine. Page 7 from the book Of Pandas and People makes the point that biological information and living things contain abundant amounts of information. There certainly is no argument there. The biological information must come from a designer. And the way in which Pandas makes this argument is by using an example of information from the nonbiological world. So it tells students, if we walk along the beach and we see something written here that says, John loves Mary, that's an example of information from which we immediately infer the existence of an intelligent designer, a designer who thought of the message, coded it in the sand, and used symbols, symbolic language, in order to get that information across. What Pandas then says is that biological information meets the same standard. And do we have -- have we highlighted part of the text on this page? Okay. The patterns in biological information are described in this passage from Page 7 in Pandas. And the passage which I will read begins with the following: Quote, Are natural causes capable of producing these kinds of patterns? To say that DNA and protein arose by natural causes, as chemical evolution does, is to say that complex coded messages arose by natural causes. It is akin to saying John loves Mary, the message written on the beach, arose from the action of the waves or from the interaction of the grains of sand. And I'd like to skip to the highlighted portion at the bottom of this and say -- and read to the Court that Pandas tells us, quote, If science is based on experience, then science tells us the message encoded in DNA must have originated from an intelligent cause, unquote. So Pandas basically tells students all information must come from an intelligent cause, there's information in DNA, and therefore it's just like John loves Mary written on the beach, there must have been somebody there to write it. Q. And is that correct? A. No, sir, I don't think it's correct at all. I think there are logical problems with the analogy, and as an experimental scientist, there is strong scientific evidence that this is simply not the case with respect to biological information. Q. Let's start with the analogy that they make. What's wrong with this analogy to John loves Mary must have been designed by some intelligent designer? A. Well, I can think of a lot of things that are wrong with it. The first thing is that the message John loves Mary, which is sitting here in the beach, doesn't have the capacity to replicate as DNA does. It is never passed along in the process of reproduction as DNA is. It can never undergo genetic recombination as DNA can. It can never be subject to natural selection as the organisms and their characteristics coded for by DNA can. In short, that message is not part of a living organism, and the fact that messages in DNA are part of a living organism makes them entirely different. The second point, however, that the analogy fails is something that any philosopher, any logician would spot in a second. When we look at the John loves Mary sentence, we know, for example, what the -- we know who made that message, and what I mean by that is, we know that a human being made that message because it is the kind of message that human beings make. We also know how that designer, the human being, made that message, probably by scratching a stick or other object into the sand to move the sand apart and create the message. And, finally, from our own ordinary experience, we've seen it happen. So we know the designer, we know the mechanism, and we have observed it happen in our own empirical experience. In the case of inferring a designer for DNA, curiously, the advocates of intelligent design don't meet those standards. They say, we can't tell who the designer is, we cannot know the mechanism, and we also do not know how the designer operated and we've never observed it. Therefore, the comparison between that kind of message and the kind of message in DNA fails even the most basic test of logic. Q. Now, has there been scientific research done on this proposition of whether or not there are natural explanations for new biological information? A. Yes, there has, in fact, a great deal. Q. And could I direct your attention to Plaintiffs' Exhibit 245. Do you recognize this exhibit? A. Yes, I do. This is a review article that was written in a very prestigious journal, Nature Reviews Genetics, and it's written by Manyuan Long and several other people. And the title of the article is, The Origin of New Genes, Glimpses From the Young and the Old. It's an article that I read immediately, as many scientists did when it came out, because it describes a number of mechanisms by which new genetic information is developed by the processes of evolution. Q. When did this article come out? A. I believe this was published in the year 2003. Q. And how does this contradict what Pandas tells students? A. Well, it contradicts what Pandas tells students in a number of ways. First of all, you remember that Pandas said that all biological information, by analogy to John loves Mary written on the beach, had to be directly encoded by a designer. And what this paper summarizes, because it's a review paper, is it summarizes dozens of research projects in laboratories around the world on different mechanisms by which new biological information arises through the process of evolution by natural selection. And if we could advance the slide, please, I prepared a slide showing a table from the second page of this article. And thank you very much for zooming in on the table. And what you see on this table are a series of mechanisms by which new genetic information can arise. You'll notice the top one, the area up here talks about exon shuffling. The next one, gene duplication, then retroposition, mobile genetic elements, lateral gene transfer, gene fusion and fish, and, finally, de novo gene origination. Every one of these is a distinctly different molecular mechanism that results in the generation of new genetic information. None of them requires a designer, curiously. Now, the other thing that I find, I think, worthy of the Court's attention is that none of these are hypothetical mechanisms. In every case, the specific genes that have been formed by these mechanisms are listed in the third column of the table. And in the fifth column of the table, there are a series of scientific references documenting the studies that have shown how these genes originated by evolutionary processes. Q. So this is one article, but, in fact, it talks about many other articles that have done the research to support this proposition? A. That is correct. This references more than three dozen scientific studies showing the origin of new genetic information by these evolutionary processes. Q. Let me ask you, because I'm not a scientist, so I'm going to ask you to pretend that I'm your mother here. This notion of creating new biological information through natural pathways, I mean, is that a big deal that Pandas gets this wrong? A. I think it is a very big deal that Pandas gets this wrong, because you have to remember that the core argument of Of Pandas and People is that there is abundant evidence in biological systems not only that evolution is wrong, but also that there is a creator/designer who encoded all of this information into biological systems. Pandas at one point makes a statement that this information was written by the designer into the various types of organisms at the beginning, which is clearly the description of a creative act. And the only way that it can make that statement is by arguing that information cannot arise by natural mechanisms of the sort described abundantly in this review and summary paper. Q. So Pandas is just dead wrong on this point? A. Pandas is wrong on this point, but I think it's more important to point out that Pandas is wrong in a most particular way. Anybody can write a book about science and make a few mistakes, and Lord knows I have made my share of mistakes in trying to summarize science. But the error in Pandas in this respect is systematic, and that is, the errors are all intended to point students towards the acts of special creation by the unnamed designer that are designed to encode the information into systems. So by arguing that studies like this don't exist, that mechanisms like this don't work, Pandas makes the case for the existence of the supernatural special designer or creator. Q. Now, you've discussed with us three errors in Pandas which come within your field of molecular biology. Are there other what you would consider significant errors or distortions of the science in Pandas? A. Yes, sir, there are. Q. And we will have another expert, Professor Padian, who will come in and talk about some of these in more detail, but just briefly, if you could just identify what some of those other errors are. A. Well, I think the principal one that I would identify for the Court is that Pandas completely misstates the character of the fossil record and the nature of natural history. And one element of that -- I know you will have a paleontologist coming in later to go over that in detail for the Court, but one element of that that I find particularly significant is in Pandas' nearly complete omission of any discussion of what causes extinction. Pandas mentions the fact that -- well, actually, Pandas mentions extinction in a few places. Any paleontologist will tell you that more than 99.9 percent of all organisms that have ever existed on this planet have gone extinct. So just about every organism that has ever appeared is now extinct. Now, evolution, of course, has no problem explaining this because the competition between organisms and continuing genetic change is one of the engines that drives extinction. This is extremely well understood. But if one proposes to students the existence of an intelligent designer who used his skill and craft and cunning to encode this information and to produce perfectly-designed organisms, the fact that most of them go extinct is an embarrassment. And, in fact, you know, an intelligent designer who designed things, 99.9 percent of which didn't last, certainly wouldn't be very intelligent. And one of the questions that I think any reasonably inquisitive student will have when they open this book is, if an intelligent designer made all these things, why have they all become extinct if he's so intelligent? And Pandas simply does not address the issue, even though it clearly is going to raise it in the mind of any student who uses this book. THE COURT: Mr. Walczak, I'll tell you that anytime between now and 12:30 that you want to wrap up a line of questioning, you can do so. But I don't want to stop you here if you're in the middle of something. MR. WALCZAK: Your Honor, I think about five more minutes would be -- THE COURT: That's fine. Let's wrap it up by 12:30, at least. BY MR. WALCZAK: Q. Dr. Miller, you talked earlier about the core of propositions of evolution. Does Pandas reject those core propositions or argue that, in fact, they are scientifically incorrect? A. Yes, sir, it does. It rejects all of them. In my opinion, it dances around the proposition that life has changed over time. It sort of -- it maintains what you might call a reserved indifference to that proposition. It certainly rejects common descent, and it profoundly rejects the third proposition, which is that the process of change can be understood by things that we observe happening in the world around us today. Q. Let me direct your attention to Page 65 of Pandas. Matt, if you could highlight it. Could you read this highlighted passage from Page 65 on Pandas? A. Of course. Page 65, quote, Adherents of intelligent design assume that in the beginning all basic types of organisms were given a set of genetic instructions that harbored variation but were resilient and stable, unquote. Q. That's a rejection of natural selection and common descent? A. It is a profound rejection of this, because basically what it describes is the special creation of all organisms, because it says basic types of organisms, which in earlier parlance might have been referred to as created kinds, were given a set of instructions. In other words, the genetic information was written into them. They couldn't change, they were resilient and stable. So the picture that any reasonably intelligent student is going to get out of this is that intelligent design means that the designer/creator inserted these instructions into living organisms and they have remained essentially unchanged since that time. Q. Let me direct your attention now to Pages 99 and 100 of Pandas. I'd ask you to read the highlighted passage. A. Quote, intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings, et cetera. Q. Is that science? A. No, not at all. And, in fact, anyone would recognize that in a flash as a form of special creation, because what we have here is intelligent design means the various forms began abruptly, and I might add separately, which is what the previous quote implied, and everything was intact. In other words, organisms were created by an intelligent force instantaneously with all of their features present. Now, I don't know if we have a demonstrative to this, but on Page 99 there is also a graphic that drives home this point in case the verbal -- in case the words are too subtle. Do we have that as a demonstrative? Q. Could you pull up Page 99? A. I think, actually, that's fine without further enlargement. And what you see now is Page 99, Of Pandas and People, and you can see that what is presented here is Pandas -- or the view of the fossil record and natural history that Pandas wishes to show to students, and that is that every single organism began its existence on earth as a result of a creative process with the information inserted into it, as it says, by an intelligent agent. It lasts for a certain time on earth, and then it vanishes due to extinction. So what we have basically is a series of separate creative events required to bring each individual type of organism into existence. If one wished to understand whether or not Pandas is consistent with the idea of common descent, one look at this graphic tells you huh-uh, because what Pandas clearly shows in this graphic is separate descent of every single basic type of organism. Q. And is that similar to creation science as it was practiced in the 1980s? A. It is -- the notion of separate descent is identical to creation science, and the only difference that I can see is that in Pandas the creative events are presumed to be spaced out over time, whereas in creation science, those creative events were presumed to have occurred at the same time or the same six-day period. Other than that, I don't see much to differ them. MR. WALCZAK: I think, Your Honor, now would be a good time for me. THE COURT: All right. We'll take a lunch break now. I might be inclined to say class dismissed for the morning. We'll return at 1: you be in your seats promptly at that time so that we can start our afternoon session then. I thank you. We'll stand in recess until 1:45. (A luncheon recess was taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 1 (September 26), PM Session, Part 1 THE COURT: All right. We welcome you all back from our lunch break. We're two or three minutes later than we wanted to be, but you'll excuse that, I hope, and we'll proceed. Mr. Walczak, back to you. MR. WALCZAK: Thank you, Your Honor. DIRECT EXAMINATION (continued) BY MR. WALCZAK: Q. Dr. Miller, I want to now switch gears from the discussion of the textbook Of Pandas and People to Professor Behe. Who is Michael Behe? A. Michael Behe, I believe, is a professor of biochemistry at Lehigh University. Q. And has he done research on intelligent design? A. Well, to be perfectly honest, I'm not sure that he's done research on intelligent design. I'm aware of some of his published peer reviewed literature and can say that it concerns a wide variety of topics. I believe nucleotide and nucleic acid biogenesis, and most recently, a study on random replacement of neucleoties in genes; in other words, sort of a moving around of the genetic code and see happens to a gene. Q. So Dr. Behe has published some peer reviewed articles, but these are not on intelligent design? A. To my reading, none of them actually are on intelligent design. He's published a fair number, good number of peer reviewed articles in leading peer reviewed scientific journals, no question. Q. What is it that Professor Behe brings to the concept of intelligent design? Does he bring some idea to the table here? A. Yes, I think he does. And the idea that he brings to the table, as you put it, is that the classic argument from design, which has been around for hundreds, thousands of years, that biological systems are complex and suggest the existence of a designer can also be phrased in terms of biochemistry. So I believe Dr. Behe's book, Darwin's Black Box, was subtitled the Biochemical Challenge to Evolution, so what he brings to the discussion basically is the old argument from design written up in the new language of biochemistry. Q. Let's take that in a couple of steps. First of all, you mentioned Darwin's Black Box. And I direct your attention to Plaintiff's Exhibit 434. Is this the book to which you refer? A. Yes, sir, it is. Q. And is this the book that Professor Behe wrote which explains his idea of irreducible complexity? A. Yes, sir, it is. Q. Now let me ask you. Is this a peer-reviewed publication? A. To my understanding, no. Books like this are subject of what you might call a kind of peer review, which is a discussion between you and the editor and perhaps the copy editor, in the same way that my own box, Finding Darwin's God, was subject to those discussions. But by the standards of science, neither my book nor Dr. Behe's book counts as a peer-review publication. Q. Now you said a moment ago that Dr. Behe's idea isn't actually new. What do you mean by that? A. Well, the essential argument that some features of living things are too complex to have been generated in any other way other than by attribution to a designer is an idea that, to my poor understanding of ancient philosophy goes back to the Greeks. And in western culture, very often one would go back to a book called Natural Theology that was written by the Reverend William Paley and published, I believe, in 1802. And Paley's book had what's probably the best pre-Charles Darwin classical formulation of the idea of intelligent design. Paley was quite a naturalist. And he really understood the complexities of living systems, of living organs. He understood how they work with each other, how delicate the interplay is. And he said that this very complexity argued for the presence and the existence of an intelligent designer who drafted all these organisms and created each of them individually. Q. And did Reverend Paley use certain examples that we might be familiar with? A. Yes, he did. Paley used a whole variety of examples. And I believe some of them included the nervous system, the muscular system, the digestive system. And he used them in a variety of different types of organisms. So it was a very interesting book to read, and still is a very interesting book to read. The example of Paley's that I think is remembered the best is the example of the eye. And he pointed out that the eyes that we humans have -- because among the animal kingdom, we have very good eyes. Very few animals that can surpass the human eye. Our eye is a complex multi-part system. And I can't name all the parts not being an anatomist. But we have the cornea, we have the lens, we have the iris, we have the aqueous humor, the vitreous humor. We have the retina in the back of the eye. And for proper vision, all of these parts have to work together as a coordinated whole. And that was part of Paley's example. Paley said, for example, what good would a lens be without a retina? And what good would a retina be without a lens? And, therefore, all the parts would have to be assembled together. And, therefore, only a designer could do that. Q. So his conclusion was that, there could not be a natural explanation for this complex system, the eye, therefore, there was a designer? A. That is correct. Q. And did Paley identify the designer? A. To Reverend William Paley, there was absolutely no doubt as to who the designer was. He said it was God. Q. And so how does Dr. Behe's argument differ from Reverend Paley's? A. Well, as far as I can tell, it differs in two essential respects. The first respect is that, Dr. Behe, although he praises the arguments of William Paley in several areas of his book, argues that the argument from design, as Paley's argument is known, is made most effectively at the level of the cell, at the level of the molecule. So he basically has attempted to update Paley's argument, not by looking at large organ systems, but by looking at biochemical machines that exist inside individual living cells. And the second way in which his argument differs from Paley is that, Dr. Behe, after coming to the same conclusion, that there had to be an independent designer, a creative force that created these machines, these pathways, and put them into being, Dr. Behe is unwillingly to name the identity of that designer. And I believe he suggests that the designer, of course, could be a divine force, but it could be super intelligent space aliens from Mars or perhaps time traveling cell biologists going into the past from the future and causing the structures to be put together. Q. And have you actually heard Dr. Behe use these examples? A. Yes, sir, I have. Dr. Behe and I have discussed and debated this issue a number of times, and these are examples that he has used in those discussions. Q. Now Dr. Behe advances an idea known as irreducible complexity. Can you explain to us what that idea consists of? A. Sure. The idea of irreducible complexity starts with the observation that living cells contain complex biochemical systems and machines. They are composed of many parts. He then suggests that, that complexity is irreducible. What he means by irreducible complexity is, if we start to take a few parts away to see if we can make a simpler machine, we very quickly discover that we can't, that a machine stops functioning. Now I've prepared a few demonstratives with quotes from Dr. Behe's work to sort of illustrate this point, if it's all right for the Court to show these. THE COURT: Yes. BY MR. WALCZAK: Q. Could we have the bacterial flagellum power point? A. So this is, in a way, a summary of Dr. Behe's argument. And one of the things that I think is important to make clear to the Court is that, it is absolutely true that there are many, many structures in the living cell, many biochemical pathways for which we don't have a detailed biochemical -- excuse me, a detailed evolutionary explanation. That is a point that all scientists will concede. Do Doctor -- Q. I'm sorry. Is that true just about evolutionary theory or is that true about any science? A. That's true about anything. In cell biology, for example, I think most people and the court are aware that when a cell divides, the chromosomes that carry the genetic information of a cell are moved apart and separated into the two daughter cells. We have enormous arguments in the field of cell biology as to what the exact mechanism is by which that force is generated. We can all see it happen. Any high school student can watch the separation of chromosomes under a microscope in a high school laboratory. But we still don't know exactly what the motor or the mechanism is that moves these apart. There are many, many other unsolved problems in biology. Q. I'm sorry. Please continue. A. Sure. So it's important to note that Dr. Behe's argument does not say simply, well, there are complex structures within the cell for whom we do not understand the detailed evolutionary origin of, that's absolutely true. But his argument really rises to a different level. What I've shown on this slide is a diagram of the bacterial flagellum. Now bacteria, of course, are very, very simple cells. They're found everywhere in nature. They're found, for example, in our digestive systems. They're found in the skin. They're found on the surface of the table. Some bacteria have little whip like structures called flagellum. You might almost considers them to be outboard motors. And these things whip around at very high rates of speed, and they propel the bacteria through water, or sometimes they pull the bacteria in sort of a screw like motion through the water. So it's marvelous machines. They are acid powdered reversible rotary engines. These are marvelous little machines, and they are made of a whole series of protein parts, some of which are shown in this little diagram here. Now if we can animate this slide a little bit. Next point. Now what I wrote here is that, Dr. Behe has made very clear in what I think is fairly called his biochemical argument from design, that that argument depends upon a much bolder claim than simply saying, scientists have not completely explained how this structure evolved. And that bolder claim is shown in the next animated section of this slide. And that is that, the evolution of complex biochemical structures cannot even or ever be explained in principle. And, of course, what he means by that is, there is some aspect of this complexity, which means we can say not just, we haven't figured it out yet, but we will never figure it out, and that's where the evidence for design lies. Now if I may advance to the next slide. I'll try to use Dr. Behe's words to explain why he holds this point of view. The reason that evolution cannot explain, he says, the origin of such structures is because they have a property, which he calls irreducible complexity, or they are irreducibly complex. I thought it best for the Court to read the description of irreducible complexity in Dr. Behe's own words. So in the lower part of the the slide, I have a quotation from page 39 of his book, Darwin's Black Block. And I will read that to the Court. Quote, By irreducibly complex, I mean a single system composed of several well-matched, interacting parts that contribute to the basic function, wherein the removal of any one of the parts causes the system to effectively cease functioning. And now, from my point of view, the key part of the argument, and I'll continue to read. An irreducibly complex system cannot be produced directly by slight, successive modifications of a pre-cursor system -- and that's how evolution would have to produce it -- because any pre-cursor to an irreducibly complex system that is missing a part is by definition non-functional. So his argument is that, if you have a multi-part system, and all the parts are necessary to function, you can't produce that system five parts at a time, six, seven, and gradually build up the complex system, because there is no function possible until the last part is snapped into place. And that's why evolution cannot produce that system. Now the next slide is another quote of Dr. Behe's that tries to make this point absolutely explicit as to why you need the system to be working. He points out, another quote, Darwin's Black Box, page 39, quote, Since natural selection can only choose systems that are already working -- and if you remember, his contention is, if you're missing a part, you're not working -- then if a biological system cannot be produced gradually, it would have to arise as an integrated unit, in one fell swoop, for natural selection to have anything to act upon, closed quote. And Dr. Behe rightly points out that, to imagine such complex systems arising spontaneously in one fell swoop is something that no serious biologist would argue could happen, and I will not argue either. So his point is, as long as irreducible complexity holds, then any system we can identify as irreducibly complex couldn't have been produced by evolution. It's a very, very coherent argument. Q. Does he identify some organisms that he calls irreducibly complex? A. Well, counselor, not so much organisms, but he certainly identifies some machines and some structures that he regards as irreducibly complex, one of which, of course, is the bacterial flagellum. And I pointed out, this slide contains a diagram of the flagellum. And to the right is actually sort of what we call a false color, but an electron micrograph showing a bacterium with several flagellum protruding from one end. So that is one of the principal systems to which he points. Now the next slide, please. And I should also point out, to be a little more responsive than I have been to your question, that Dr. Behe also says, the blood clotting cascade that we talked about earlier as an example of an irreducibly complex system, the eukaryotic cilium, similar system to the flagellum, that's irreducibly complex, the vesicle targeting system that parcels out things in living cells, and also the immune system are all examples of irreducibly complex systems. Now what I did in this slide was to prepare a graphic to make this point as clear as possible to those of us in court today. And that is to emphasize that complex biochemical machines composed of multiple interacting parts, if they work, they can have a function that's favored by natural selection. The essence of the biochemical argument from irreducible complexity, however, is that the individual parts of that machine have no function of their own. And because they have no function on their own, they cannot be produced by natural selection and, therefore, the impediment, the reason you can't get to here from there, you can't go from individual parts to the machine, is because the individual parts have no functions of their own. Now evolutionary biology has grappled with this problem before. And the next slide shows how evolutionary biologists generally explain the evolution of complex machines. And that is, they agree, yes, there are such machines. You need all these parts for a particular function. But where these machines come from is, they come from pre-existing machines which have functions of their own, and that the individual parts of these machines originate in components that have different functions. So the way in which evolutionary biology picks up Dr. Behe's challenge is to basically say, you're wrong, that the individual parts of these machines cannot have a function that is favored by natural selection. Now that, of course, in this slide, this is not evidence, of course, in the scientific sense. This is merely an argument. But the reason I like the way that Dr. Behe has put his argument, and I like sort of describing it this way, is because it actually is amenable to a scientific test. Something that most arguments for intelligent design are not. And the next slide. Q. I'm sorry. This is -- is Dr. Behe's argument for irreducible complexity, is that an argument directly for design? A. That's a good point. The answer is, no, it's not. It really is an argument that says why such systems are not produceable by evolution. So it's a negative argument against evolution. It is in itself not evidence. Even if the argument were correct, it's not evidence of a designer, it's not argument for design, it simply is an argument that the evolutionary mechanism wouldn't work in this case. Q. So that's why this argument is testable? A. That is correct. As I mentioned earlier, one of the problems with intelligent design is that it doesn't make any testable predictions. This actually isn't a testable prediction of design either. This is simply an argument as to why evolution wouldn't work. And that can be subjected to a test. Q. Please continue. A. Thank you. Next slide, please. So what I have done in this slide is to place the graphic summaries of the argument from irreducible complexity that I just made in the upper left-hand corner of the slide, and in the upper right-hand corner, I have basically put the evolutionary explanation using the same graphic convention. And the nature of the test that I or any other scientist would propose is pretty simple. If you animate the slide, you'll see that Dr. Behe's prediction is that the parts of any irreducibly complex system should have no useful function. Therefore, we ought to be able to take the bacterial flagellum, for example, break its parts down, and discover that none of the parts are good for anything except when we're all assembled in a flagellum. If evolutionary theory holds, however, and we can animate again, and we'll show that in the right-hand side, evolution makes an extremely straight forward prediction. And that is, when we look at these irreducibly complex structures, we ought to be able to find parts of those systems that actually do have useful functions within them. So we can do a very straight forward either/or test to distinguish between these two alternatives. So what I'd like to show in the next slide is how such a test can be conducted. This is a -- in the upper right-hand corner of the slide is a graphic representation from a review article showing some of the proteins involved in the construction of the bacterial flagellum. Now the individual names of the gene products need not concern us. They often begin with FL for flagellum. But as you can see, just as Dr. Behe says, this is a complex multi-part biochemical machine. Now the test that I would propose, we can animate the slide, please, to start with this flagellum. And if Dr. Behe is correct, if we take away even one part, there should be no function. But I'm going to propose that we take away not one, not two, I'm going to propose we take away 30 parts. And what I'm going to propose to do is, take 30 of these proteins away and see what is left. And the slide that I set up is animated, and what we have done is -- actually, could you go back for the animation and then do it again? And let's watch the Court do it, and we'll do the animation now. Thank you. And you can see the parts that I have removed are on the outside and the inside, and what are left are 10 proteins that span the inner and outer membrane. These bacteria, many of them are surrounded by two membranes. These 10 remaining parts are shown in the next diagram, which will come up on the slide. And this is a diagram showing where these 10 parts are. They exist at the very base of the flagellum near one of the cellular membranes. Now the prediction that is made by Dr. Behe in his book is extremely straight forward, which is, since this was an irreducibly complex machine, and we've taken away most of its parts, what's left behind should be non-functional because, you remember, he wrote, any pre-cursor to an irreducibly complex machine that is missing a part is, by definition, non-functional. This guy is missing 30 parts. Next slide. Well, it turns out that what is actually left behind when we take those parts away is a little structure with those 10 parts, which is known to microbiologists as the type III secretory system. And I can see, Mr. Walczak, you're saying, why, of course, it's the type III secretory system. THE COURT: That certainly was on my mind. THE WITNESS: Exactly. Now I was expecting a question of, how do you know it's not type II or type IV? The type III secretory system is a little molecular syringe that some of the nastiest bacteria in all of nature have. Yrsinia pestis, for example, which is the organism that causes bubonic plague, is a type III secretor. And what it does is, it gets inside our body, crawls up alongside, and uses this syringe to inject poisons into a human cell. And in the lower left-hand corner of the slide, I have some diagrams showing the operation of a type III secretory system. Now the connection between this and the flagellum is that the type III -- the 10 proteins in the type III system are almost a precise match for the corresponding 10 proteins in the base of the bacterial flagellum. So it's very clear that a subset of those proteins has an entirely different function, a beneficial function, not for us, but for the bacterium, and a function that can and is favored by natural selection. Can I have the next slide, please? So the summary of this example is really very straight forward. When we take this complex multi-part system, which is the bacterial flagellum, the prediction made by Dr. Behe from irreducible complexity is when we break the parts apart, we should have no useful functions. Anyone missing a part is, by definition, non-functional. We follow that up. We do break it apart. And lo and behold, we find -- actually, we find a variety of useful functions, one of which I have just pointed out, which is type III secretion. What that means, in ordinary scientific terms is that, the argument that Dr. Behe is made is falsified, it's wrong, it's time to go back to the drawing board. Q. And does Dr. Behe focus on just one type of cell? I'm sorry if I'm using the wrong terms here. A. No, he doesn't. His arguments extend to a wide variety of cells and a wide variety of systems that he identifies as irreducibly complex. Q. But the reasoning, the analysis that you just went through is -- applies in the same fashion to these other examples, is that correct? A. Yes, it would. And if I could redirect the Court's recollection to earlier today, one of those systems was, in fact, the blood clotting cascade. And Pandas, and as it turns out, Dr. Behe's book, Darwin's Black Box, makes the same statement, which is that, all of the parts have to be together for blood to clot effectively. The exact quotation, I think, is, if even one part is missing, the system fails and blood does not clot. And I then showed that when we look for, for example, at the genome sequence of the puffer fish, we find that three of the parts are missing and blood still clots perfectly well. That is exactly the same kind of argument, which we just examined, and also found wanting in another of Dr. Behe's chosen examples, which is the flagellum. Q. I asked you, in preparation, to select a third example, and that was the immune system. What is the immune system? Other Links: Evolving Immunity: A Response to Chapter 6 of Darwin's Black Box A detailed look at Behe's claims that the immune system could not have evolved. A. Well, it's a very good question, because we all depend for our very lives on a functioning immune system. It's a system of our body that is widely distributed. We have cells from our immune system sort of engaging in patrol, floating throughout the blood stream and the tissues. And it's a system that enables us to identify, defend against, and to repel foreign invaders. When I was a little boy, for example, it was on vacation, too, which I never really liked very much, I got the chicken pox, and I was very, very sick. And it was during spring vacation, so I had the wonderful experience of being sick during vacation week. But chicken pox is a virus when invades the human body, the immune system recognizes the code proteins on the virus, makes cells that can continue to recognize it, and produces proteins called antibodies that will bind to the surface of the virus. What that meant is, once I had gone through that miserable week with the chicken pox, I could be confident I would never get it again. I would be permanently immune to the chicken box. This is a very important realization for medicine to have because, of course, most of us in this room have received vaccinations designed to stimulate our immunity from diseases far worse than chicken pox such as, for example, polio and diptheria and whooping cough in an effort to stipulate our immune systems to make sure we never get sick from those diseases. Q. Have you prepared a presentation on the immune system that will help you to explain this? A. Yes, sir, I have. And if we could show the first slide, I want to start -- and, Your Honor, I may have to stand up to -- THE COURT: That's fine. THE WITNESS: Thanks. I thought I would start by pointing out an essential protein of the immune system. You can't work without it. That essential protein is sometimes -- it is called by researchers an immunoglobulin, but it is more commonly called an antibody. These are the essential molecules of the immune system. In the upper left-hand corner of the slide, there is a molecular diagram for what an antibody actually looks like. It basically is a little Y shaped molecule with two binding sites. And you'll notice in the slide, those binding sites are labeled foreign particle binding sites. I hope I have antibodies circulating in my bloodstream against chicken pox. So if I get chicken pox virus in my body, that foreign particle binding site on my chicken pox antibody will bind to the surface of the virus. Another one will bind to the other site. And gradually, the virus will be cross linked into a mesh world, which my immune system recognizes, eliminates from the circulation, and destroys. And that's why, hopefully, I'm not going to get chicken pox again. Now in the lower right-hand is a more diagrammatic view of this molecule. It's made up of four parts. These are each polypeptides, and they're diagrammed. And you'll notice that part of these -- each of the polypeptides is colored blue, and another part is colored red. The red says, variable region. Now I know some of my own vaccination history, so I've been vaccinated against polio, diptheria, measles, and a number of other diseases. The antibodies in my body against polio differ from the antibodies I have against diptheria in the variable regions. They have a different shape because the viruses or the bacteria have different molecules on the surface. The genius, if you will, of the immune system, is that it can produce an antibody that will attach to, stick to, identify, and destroy just about anything. So one of the most important things in our immune system is the ability, basically, to produce antibodies against any conceivable molecule that might get inside our body. Can I have the next slide? Now about 20 years ago, a scientist working at MIT named Susumu Tonegawa -- I know I'm going to have to spell that for the court reporter -- determined exactly how antibodies had the ability to produce such diversity. And that is, it turns out to be a system in the genes of cells in the immune system known as a VDJ recombination system. And this system is not at all unlike a dealer shuffling a deck of cards, and that at a certain point in development, parts of DNA, in a variety of genes, are literally shuffled. They're tossed from one side to another, and they are rearranged to form a final gene. Now some elements of this shuffling are random just like you hope the dealer, when you go to Las Vegas, is shuffling those card randomly so you don't know what you're going to get. But it's in that random shuffling that our immune system develops the ability to produce an antibody to just about anything. That shuffling is at the heart of why the immune system works. If anything goes wrong with this process, the individual in which it goes wrong loses the ability to make diverse antibodies, they get very sick, and they're in big trouble when they start to see foreign organisms. Other Links: The Revenge of Calvin and Hobbes A look at the evolution of the VDJ recombination system and recent developments in science refute Behe's claim that it could not have evolved. The Evolution of Improved Fitness By Random Mutation Plus Selection The VDJ system protects us by evolving antibody sequences. Now the next slide. Where did this system come from? That's the question that people interested in evolution always try to answer. About 10 years ago, a number of scientists, including Nobel Prize winner David Baltimore, speculated that this process, which is called VDJ recombination, might actually have evolved from a system known as transposition, a system in which genes jump around. What I have placed on the slide in addition to this diagram and the reference to the Baltimore group's paper in the Proceedings of the National Academy of Sciences is a quotation from this paper illustrating his hypothesis. They, and he means the gene shuffling system, could have been part of retrotransposons and had a DNA rearrangement function this their previous life. It's possible that the ancestors of these genes, they're called RAG genes, may have been horizontally transferred into a metazoan multi-cellular animal lineage at a recent point in evolution. So he argued, he suggests there might be an evolutionary way to explain where this system came from. It's a very interesting suggestion. And as I wrote in the slide, perhaps the three part system arose from a type of mobile genetic element known as a transposon. It's a hypothesis, but the important point, and the reason it's useful is that, it is a testable hypothesis. Can I have the next slide, please? Now Dr. Behe was aware when he wrote Darwin's Black Box of the speculations of the Baltimore lab. BY MR. WALCZAK: Q. I'm sorry, what year was Black Box written? A. That was written in 1996. Q. And the Baltimore article was? A. 1994. Q. So Dr. Behe addressed that. And he regarded this as mere speculation. And he also basically told researchers, don't bother. And the reason you shouldn't bother is actually given in the bottom of the slide. On page 130 of Darwin's Black Box, he wrote, and I quote, In the absence of the machine -- that's the gene shuffling machine -- the parts never get cut and joined. In the absence of the signals for where to cut, it's like expecting the machine that's randomly cutting paper to make a paper doll. And, of course, in an absence of the message for the antibody itself, the other components would be useless, closed quote. So he basically argues, because this is a multi-part system and all parts had to be together for it to work ahead of time, you're not going make any progress. A few pages later, he's even more explicit about that. On page 139, he wrote, quote, As scientists, we yearn to understand how this magnificent mechanism came to be, but the complexity of the system dooms all Darwinian explanations to frustration. Sisyphus himself would pity us. I hope you're up on your classical mythology. Q. That's what Dr. Behe wrote in his book in 1996? A. That is correct, sir. He basically told scientists, don't bother to try to investigate the evolution of this because it's irreducibly complex, it's multi-part, you cannot solve it with evolution. Q. So what's happened since then? A. What's happened since then is, I think, very interesting. Can I have the next slide? This is the quote from Dr. Behe. The complexity of the system dooms all Darwinian explanations to frustration. If you animate the slide, please. In 1996, the same year that Darwin's Black Box came out, very strong biochemical similarities were found between this shuffling process, the VDJ recombination, and the way in which retroviruses shuffle their DNA, very suggestive. Q. Now when you say, found, where was this found? A. The -- well, the report is in the journal Science. This particular case, I believe, was found in a prokaryotic system because retroviruses can go into all sorts of systems. But the important point is, these investigators noticed there were biochemical similarities between the way the genes are shuffled in the immune system and the way that retroviruses go into other cells. Q. This is a publication that has been peer reviewed? A. That is correct. This is the journal Science, one of the best scientific publications in the United States. And, obviously, this was peer reviewed research. Q. Please continue. A. Happy to. Two years later in the journal Nature, which I have plugged repeatedly as a great publication, it turns out that the cutting and transposing enzymes that are normally used for these transposable genetic elements can be replaced by the RAG enzymes, which do the cutting and pasting in the immune system. So that's suggested a further biochemical similarity between these two systems published in 1998 in the journal Nature. Also, of course, peer reviewed. Can I have the next element, please? In 2000, the RAG enzymes were shown to cause transposition in mammalian cells. What this meant was, not only can they shuffle the immune system pieces of DNA, they can shuffle other pieces of DNA as well. So little by little, we're beginning to understand that elements of the Baltimore hypothesis are being born out by published research in peer review journals. Q. What is Blood? Is that also a peer reviewed publication? A. Blood is also a peer reviewed journal. This is an original research paper subjected to the usual process of review. Can I have the next slide, please? Once again, the quote that we've been talking about, if you could advance it, in 2003, the VDJ recombinase was shown to cause transposition -- in other words, shuffle DNA around -- not just in mammalian cells, but in human cells as well. The next animation, please, will show the transposases were discovered in nature not associated with the immune system that are a perfect mimic for the way the immune system gene shuffling machine works in human cells. And this was in the journal Nature. And finally, the last part of this puzzle was put together in the last year, and that is the actual transposic from which these enzymes and insertion sequences evolved were identified by a paper printed in the Public Library of Science, which is a brand new, but very highly regarded peer review journal, and this is Kapitonov & Jurka in 2005. It's worth noting how these researchers described their own work. And the next slide will show a facsimile of the paper, and also has a quotation from the abstract. Now this is absolutely filled with technically latent language, but it shows how thoroughly researchers have explored this particular -- this particular hypothesis. And what I will do is, I will read, and I'm going to skip parts of this, but I'm going to read, starting at the quotation marks, and I will skip over some of the technical terminology. Quote, The significant similarity between the transib transpases and RAG core, the common structure of these transpases and others, as well as the similar size of these basically catalyzed by these enzymes directly support the 25-year-old hypothesis of a transposon related origin of the VDJ machinery. And the researchers then point out, there have been other hypotheses that have been considered. Previously, the RAG transposon hypothesis was open to challenge by alternative models of convergent evolution. Because there were no known transpases similar to the gene shuffling ones, the RAG ones found, it could be argued that our gene shuffling enzymes, the RAG1 independently developed some transposon-like properties rather than deriving them from a transposable element encoded transpases. These arguments can now be put to rest. And they're very straight forward about saying, we have solved the puzzle of where this system came from. It came from evolution. And it came from a transposable element system. Can I have the next slide, please? Okay. So the summary of what we have just gone through, and this is a tree analysis of these transposons and humans and mammals are right down where it says, mammals, is that the summary is that between 1996 and 2005, each element of the transposon hypothesis has been confirmed and, furthermore, when the enzymes that do this gene shuffling are actually put to an analysis to see how closely related they are to see if they themselves match the evolutionary predicted tree, they match that tree perfectly. So we've got it. Q. So what do you tell your mother about what all this means for Dr. Behe's theory? THE COURT: Or me? THE WITNESS: I was about to say, my mother and Your Honor, but Your Honor, not being a retired nurse like my mother, my mother is deeply interested in immunity. And I often remind her that the reason I got chicken pox in the first place is because she wanted me to have immunity to it, so she marched me down the street to play with Denny Marsh who had chicken pox at the time to make sure that I would get sick. And she forgot to realize that 10 days later, which is the incubation period, was going to be spring break for me, spring vacation for me. Your Honor, I've never forgiven my mother for that to this day. So we'll have to take that up. So the important point basically is that, we have, in our immune system, as an essential part of our survival, the ability to shuffle genetic information so as to make it possible for our immune cells to make an antibody to just about anything. That shuffling ability was proposed 10 years ago to have evolved from sequences known as transposable genetic elements. In 10 years of research, every step of that hypothesis has been confirmed. And we, therefore, do know, as the result of investigation using evolutionary theory, where that came from and how this gene shuffling ability arose. It also means -- could we advance to the next slide, please? Actually, I'm sorry, I forgot that. I'm finished with the slides. It also means that the prediction that Dr. Behe quite confidently made on the basis of intelligent design theory, that this system would not be amenable to Darwinian investigation, that there would be no evolutionary explanation for it, turned out to be wrong, and I am happy to say that fortunately research scientists did not listen to him. If they had listened to him, they might not have done this research, and we might not have had this fundamental breakthrough in how the immune system works. BY MR. WALCZAK: Q. Did Dr. Behe, in fact, rely on this argument, that the immune system could never be explained by natural selection to argue that, in fact, there must be an intelligent designer? A. Yes, sir, he did. And this is actually one of several arguments that he raises in Darwin's Black Box to say that, if you cannot, in principle, explain the origin of a complex system by evolutionary means, that is by invoking the negative, that is evidence for an intelligent designer. This is another essential example in his list of irreducibly complex systems. Q. Let me direct your attention now to Plaintiff's Exhibit 665. And not to be redundant, but, in fact, is there now even more research on the immune system that has come out even this past week? A. Well, yes, it has. And as I was getting ready to pack up and come to Harrisburg for this trial, I happened to glance over the Internet at the latest issue of the journal Nature, which has actually not yet appeared in print. I'm still waiting for my copy in the mail. But fortunately, you can on look at things on the Internet several days ahead of time. The VDJ recombination system is not the only important part of the immune system. There is another important part known as the compliment system. And in this case, compliment does not mean, say something nice about somebody. Compliment in this case is a system that compliments or completes part of what's known as the immune response. And it consists of a series of proteins that target and destroy. And they destroy, in a molecular sense in a most vicious way possible, foreign invaders, especially bacteria and foreign cells. One of the key elements of this is a compliment component now as C.. this article reported, and this is from Jansen et al. It's from a combined Dutch and Scandinavian group. And again, it's in the latest issue of Nature. They, for the first time, worked out the detailed structure of compliment C.. and the structure of compliment C. Immediately told them how this compound must -- how this protein must have evolved. It was made up of a series of modular units of exactly the sort that one would expect to arise by gene duplication, and the molecule had unmistakable sites in which pieces of another gene became recombined with it to produce the complete molecule. Hence, they title this work structures of compliment component C. Provide insights into the function and evolution of immunity. So the entire idea of evolutionary theory is providing a fruitful avenue of investigation into every aspect of the immune system, not just the gene shuffling that I've talked about, but into this other area known as compliment. Q. So Sisyphus isn't that envious? A. I don't think so. Q. I'm listening to the arguments that you have described Dr. Behe is making, that these components are irreducibly complex, and that science cannot explain them. And in some cases, he's been shown wrong. But is that essentially the argument, that scientists currently can't explain some aspects of evolution? A. In essence, that is the argument. It is what a philosopher might call the argument from ignorance, which is to say that, because we don't understand something, we assume we never will, and therefore we can invoke a cause outside of nature, a supernatural creator or supernatural designer. Q. And is this not a completely negative argument? I mean, it sounds like this is an attack on evolution? A. This is in every respect a completely negative argument. And if one combs the pages Of Pandas and People or, for that matter, if one looks at Dr. Behe's book or if one looks at the writings of other people who consider themselves to be intelligent design advocates, all that one finds is example after example, argument after argument, as to why evolution couldn't produce this, didn't make that, and doesn't provide an explanation for the following. I have yet to see any explanation, advanced by any adherent of design that basically says, we have found positive evidence for design. The evidence is always negative, and it basically says, if evolution is incorrect, the answer must be design. Never considers an alternative idea. Q. Now let me just stop you. Just because science today cannot explain something, does that mean it can never be explained? A. Of course not. And if it did, no one would do scientific research. What attracts scientists to research is the lure of the unknown. There is nothing more dreadful than to wake up one morning and think that all the fundamental problems in your field has been solved. On the day that I think all fundamental problems in cell biology have been resolved, I will retired to Sussex and keep bees, as Sherlock Holmes once said. You want unsolved problems. You're attracted to them. I'll just give you a very simple example. Proteins are built by hooking together strings of amino acid, almost like beads on a string. The machine that does that building is called a ribosome. We have worked for years to understand the detailed molecular structure of the ribosome. As a result of work that's been published in the last couple years, we know the internal structure of the ribosome down to the atomic level. We can now look inside it, and we can see the molecular details of how these two amino acids are brought into very close proximity. But do you know what? There's still an unsolved problem. We still don't understand the chemistry that forges the link between those two beads on a chain. There was a very popular hypothesis that was put forward by Peter Moore at Yale University. But in the last year, a number of experimenters, including Al Dahlberg at my own university, has shown that Moore's ideas are wrong. So what scientists everywhere realize is, there's a great prize to be won. That's very exciting. To find the mechanism by which these are joined together. What no one is doing is to say, we'll never solve it, we're going to attribute the formation of the bond between amino acids to an unseen outside force operating beyond nature and, therefore, any chemical explanation is doomed to failure. That's something we never say in science, because if we did, it would be a research stopper. It would tell us, give up, go home, we'll never figure it out. Q. What is Dr. Behe's argument? What evidence does Dr. Behe, and -- well, strike that. Dr. Behe's argument is consistent with the arguments made in Pandas, I believe you testified before? A. Yes, sir, that's exactly what I testified. The term irreducible complexity, which is a feature of Dr. Behe's book, does not appear in Pandas. But the core idea behind irreducible complexity, which is in these complex systems, all parts must be assembled in order to have function, that is at the heart and soul of the arguments which are in Pandas. Q. Now what I've heard are these negative arguments about evolution. What is the evidence in Pandas? Let's start with Pandas. What is the affirmative evidence for a designer? A. I'm not aware that there is any affirmative evidence for a designer anywhere in that book. Q. And what about in Dr. Behe's work? A. As far as I can tell, there is no affirmative evidence for a designer in Dr. Behe's book either. Both books rely entirely on negative inferences by saying that, if evolution has problems, if evolution is wrong, if evolution cannot provide complete explanations, then we can go ahead and say it's a designer. Q. So how do they make that argument? I mean, even if there's no evidence? What's the rationale? What's the reasoning for getting to that designer? A. Well, with all due respect, I believe I've already answered that question, which is, I don't find there is any reasoning in that area at all. It's the sort of logical fallacy in which you might say, well, I have theory A, and I have theory B. And I can prove theory B by showing theory A is wrong. And in science, you say, excuse me, just a minute. Besides theory B, there's an infinite number of other possible theories. So you don't, quote, prove one by showing that another one is wrong. If you show another one is wrong, you've shown that it's wrong. All other alternative theories are now equal contenders. So the logic of picking out intelligent design, which is inherently untestable, and saying that any evidence against evolution is evidence for intelligent design employs a logical fallacy that I think most scientists reject. Q. So the argument is that, if science can't explain it, that default is, a designer? A. That is the argument, as I understand it, and as it is expressed in both of these books. Q. Has the scientific community taken a position similar to yours about intelligent design not being science? A. Well, the scientific community, of course, is large and diverse, and I'm sure there are a few people who are enamored of intelligent design. As I mentioned earlier, the largest scientific organization in the United States, the one organization that probably can fairly be said to speak on behalf of the scientific community in this country is the American Association for the Advancement of Science, or AAAS. I know they have indeed taken a position on this issue. Q. Could I direct your attention to exhibit -- Plaintiff's Exhibit 198? Do you recognize this? A. Yes, sir, I do. This is a board resolution by the governing board of AAAS on intelligent design theory. Q. If we can highlight the passages. And Dr. Miller, could you read the highlighted text? A. I'd be glad to. Quote, Whereas ID, intelligent design, proponents claim that contemporary evolutionary theory is incapable of explaining the origin of diversity of living organisms, whereas to date, the ID movement has failed to offer credible scientific evidence to support their claim that ID undermines the current scientifically accepted theory of evolution, wheres as the ID movement has not proposed a scientific means of testing its claim, therefore, be it resolved that the lack of scientific warrant for so-called intelligent design theory makes it improper to include it as a part of science education, closed quote. Q. That is the official position of AAAS? A. That is correct, sir. Q. That is the largest association of scientists in North America? A. That is absolutely correct. And this is the organization that really speaks on behalf of the scientific community in our country. Q. Now has the National Academy of Science taken a position on intelligent design? A. Yes, sir, I believe it has. Q. Could I ask you to take a look at Plaintiff's Exhibit 192? This is the publication we viewed earlier today? A. Yes, sir, it is. Q. Could you turn to page 25, please? And could we highlight the third paragraph on that page, please? And this is from the conclusion of this publication, Dr. Miller? A. Yes, sir, I believe it is. Q. Could you please read for the record the highlighted text? A. Quote, Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science. These claims subordinate observed data to statements based on the authority, revelation, or religious belief. Documentation offered in support of these claims is typically limited to the special publications of their advocates. These publications do not offer hypotheses subject to change in light of new data, new interpretations, or demonstration of error. This contrasts with science where any hypothesis or theory always remains subject to the possibility of rejection or modification in the light of new knowledge, close quote. Q. Are you aware of any scientific organizations that have taken a position that intelligent design is science? A. I am not aware of any scientific organization that has taken a position that intelligent design is science, not one. Q. Why do you believe that intelligent design, as described in Pandas and by Professor Behe, is a form of, I think as you put, special creationism? A. I believe that as a proper analysis for the following reason. Each of the systems described by Dr. Behe had their origination, their first appearance at some time in the natural history of this planet. Each of the organisms described in Pandas and People and said to appear suddenly, fully formed in the fossil record had their origin at a particular time in the past. To say that such organisms are designed or such pathways are designed is only to tell part of the story. Because, for example, if the blood clotting cascade had only been designed, our blood wouldn't clot. That pathway had -- that design had to be executed. It had to be created. It had to be put into physical form. And by any definition, that is an act of creative energy and power. What that means, for example, the bacterial flagellum perhaps originated a billion years ago. It means the first organism containing that flagellum had to be created. The blood clotting cascade came into existence, we think, about 450 million years ago. The genes, the co-factors, the pathways had to be created. Advocates of intelligent design point to the first appearance of many major animal groups in what is known as the Cambrian period of geologic history. If one says that those organisms were designed, they also had to be created. So that the natural history of this planet, according to intelligent design advocates, is marked by instance after instance after instance of specific and special creation. Saying that something is designed, as I mentioned, is only part of the story. We won't know about the design unless somebody created it and put it into execution, and that is what makes intelligent design inherently a theory of special creation. Q. Now does intelligent design differ from creation science or scientific creationism what you are debating in the early 1980's? A. In the early 1980's, the scientific creationist movement proposed a number of essential tenants or doctorates. One of them was that, the earth is about 6 to 10,000 years old. Another one is that, all of the geological column of this planet was formed in a single world wide flood, so that geologists are wrong when they talk about ages in the past; in fact, everything was laid down in about 40 days and 40 nights, that humans and apes have separate ancestry, that biochemical and biological systems show evidence of design, and that the mechanism of evolution does not work. These are all elements, as I understand them, of the creation science or the creationist or scientific creationism movement. Now the difference between this movement and intelligent design ironically is that intelligent design has withdrawn the testable scientific predictions made by scientific creationists. The statement that the earth is only 6000 years old is a testable scientific statement. They've withdrawn that. The statement that all of the geological formations of this planet were laid down in a 40 day, 40 night flood, that's actually a testable statement. They've withdrawn from that. The only thing that they have left is an untestable assertion, and that assertion is that the living things on this planet are too complex to have been explained by evolution and, therefore, they must be the work of a supernatural designer creator working outside of the laws of nature unidentifiable and not subject to detection, analysis, or identification. So, as I said, ironically, intelligent design is somewhat less scientific in terms of the prediction it makes than scientific creationism, but it shares that core belief, and that is that design can be attributed to a supernatural designer or creator. Q. I want to switch gears now and bring us back from the classroom, so to speak, to the classroom at Dover, Pennsylvania. I'd like to direct your attention to Plaintiff's Exhibit 124. Again, this is the four paragraph statement that was read to the students in January of 2005. You indicated earlier that you did not -- you believed that this statement did not promote students' understanding of evolution in particular or science and biology generally. I'm wondering if you could comment a little bit more specifically about your views on this four paragraph statement. And perhaps we want to take it paragraph at a time? A. Yeah, I was going to -- thank you very much. I was simply going to ask for the whole statement to be put up there. I'd be happy to discuss this statement with you in a number of ways. We could parcel it word by word and line by line, if you had the patience to do that. But I think it's probably better to take it first a paragraph at a time and basically see what it says. Well, that first paragraph basically says, kids, we have to teach evolution whether we want to or not because the State of Pennsylvania requires us to. The second paragraph says, oh, by the way, we don't really believe this stuff, it's a theory not a fact. There are gaps. There's no evidence. We're very skeptical of this. The third paragraph said, by the way, there's another alternative really good idea called intelligent design, and we're going to provide you with curricular material and the book Pandas and People so you can explore it. And I say that because I note that, there's no statement in here that intelligent design is theory not a fact, that it has gaps which cannot be explained. Those are only pointed out for evolution. The third paragraph says, basically we think this is a pretty good theory, and we're giving it our endorsement. The fourth one basically reminds students basically, go home, discuss this with your families, and reminds them again, oh, by the way, we have to test you on this stuff whether we want to or not because the State of Pennsylvania requires us to. Now when I read this, and I try to think of how a student will react to this, what it basically tells students who have studied theory after theory and subject after subject and hypothesis after hypothesis in earth science, in physical science, in chemistry and biology, it says, oh, by the way, of all the stuff you studied, we want to warn you about just one of those things. And that one thing is evolution. We have to teach evolution whether we like it or not. We think it's pretty shaky. There is this other theory called intelligent design which we think is on a very sound footing. Go home, talk it over with mom and dad, and, oh, yeah, remember, we have to test you on evolution. Q. Dr. Miller, I'd like to focus your attention back onto the second paragraph. And this makes various assertions about evolution generally. And maybe we could go through that sentence by sentence. A. Okay. I'd be glad to do that. The first sentence reads, quote, Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered, closed quote. Well, it certainly is true that the theory of evolution is a theory. That's almost redundant. That's obvious from the terminology. It continues to be tested. All scientific theories are continued to be tested. So to pick out evolution and say, by the way, it's a theory, and we're going to keep testing it, implies to students that really this is the only theory that we have to continue to keep testing. Other theories, they're fine. They're on sound footing. But this one, we have to keep working on. Q. I'm sorry. From your textbook, evolution is not the only theory that is presented for 9th grade biology? A. Of course not. And we talk about cell theory and the germ theory of disease. We even talk about the pressure flow hypothesis of phloem transfer. I've never seen a statement in the textbook saying, keep your eye on that special pressure flow hypothesis in phloem transfer. This is the only theory people seem to be concerned about. The Dover statement, first of all, basically begins in this paragraph by calling special attention to just one part of the curriculum, and that is evolution. Now the second sentence, the theory is not a fact. As far as that reads, that's actually a true statement. No scientific theory is a fact. That's not because we're sure of facts and we're not certain about theories. It's because theory is a higher level of scientific understanding than fact. Theories explain facts. And if this statement said, no scientific theory is a fact, but rather, theories are based on facts and supported by facts, and theories explain facts, it would be fine. But by saying, the theory is not a fact, it essentially invites students to say, you know what, other theories might be factual, this one isn't. And that implication is incorrect. The next sentence reads, gaps in the theory exist for which there is no evidence. I continue -- I have to tell you, I have read that statement hundreds of times, and I don't understand what it means by gaps in the theory. There certainly are elements in the natural history of our planet for which evidence is missing. There are pieces of our natural history that we don't know, just like there are pieces of our political, military, and human history that we don't know. I can only trace one part of my family back to about 1850. I don't know what happened before that. That doesn't mean I couldn't possibly be here because I don't have any ancestors before 1850. It means, I don't have the whole story. Well, that's true about evolution as well. There are parts of our recent past that are gaps, that are missing, that we don't have the story. But to say that's a gap in the theory strikes me as very very strange. There are missing pieces of evidence but not gaps in the theory. And then the last sentence, a theory is defined as a well-tested explanation that unifies a broad range of observations. Do you know what? That's fine. And if evolutionary theory had been introduced in this paragraph by saying, evolutionary theory is a well-tested explanation for the origin of life that unifies -- for the origin of species that unifies a broad range of observations, I'd be saying, terrific, that's a very useful thing to tell students. Q. As an author of a textbook, biology textbook for high school students, does this promote sound science education? A. No, I certainly don't think it does. I think it, in fact, undermines sound scientific education in a number of ways. First of all, it misleads students into the relationship between theory and fact. Secondly, it undermines the scientific status of evolution in a way that it does to no other scientific theory as if to pretend to students, we are certain of everything we're going to teach in biology this year except for evolution. And that certainly gives students a false understanding of evolution. And I think, as an experimental cell biologist, it gives them a false certainty of the rest of science, which is equally damaging. And then finally, to say that there are gaps for which there are no evidence, once again, is targeting evolution for a very specific purpose, and that is to create doubt and confusion in the minds of students about the scientific status of evolution and evolutionary theory. Q. I believe you were here for the opening statements this morning? A. Yes, sir, I was. Q. The School District argues, you know, it takes a minute to read this statement. I haven't timed it. It takes about a minute to read this statement. What's the big deal? What's the harm in reading this to Dover School District students? A. That's a very interesting point. And if they raised the issue, what is the harm in reading it, one might well turn around and say, well then why read it in the first place, if it makes so little difference, if it is of so little consequence? Then why have you insisted on doing this and why are you in court today? The only thing I can infer from turning that question around is that the Dover School Board must think this is enormously important to compose this, to instruct administrators to read it, to be willing to fight all the way to the court. They must think that this performs a very important function. Now turning it around back to my side of the table, do I think this is important? You bet I think this is important for a couple of reasons. One of which, first of all, as I mentioned earlier, it falsely undermines the scientific status of evolutionary theory and gives students a false understanding of what theory actually means. Now that's damaging enough. The second thing is, it is really the first attempt or the first movement to try to drive a wedge between students and the practice of science, because what this really tells students is, you know what, you can't trust the scientific process. You can't trust scientists. They're pushing this theory. And there are gaps in the theory. It's on shaky evidence. You really can't believe them. You should be enormously skeptical. What that tells students basically is, science is not to be relied upon and certainly not the kind of profession that you might like to go into. And thirdly, that third paragraph that we haven't talked about very much right now points out that intelligent design, which has implicit endorsement in this statement, because we don't hear that it's just a theory, we don't hear that it's being tested, it sounds like it's a pretty good explanation. It's available. It's good stuff. And students will understand immediately, as anybody does who reads Pandas, that the argument is made on virtually every page of Pandas for the existence of a supernatural creator designer. And by holding this up as an alternative to evolution, students will get the message in a flash. And the message is, over here, kids. You got your God consistent theory, your theistic theory, your Bible friendly theory, and over on the other side, you got your atheist theory, which is evolution. It produces a false duality. And it tells students basically, and this statement tells them, I think, quite explicitly, choose God on the side of intelligent design or choose atheism on the side of science. What it does is to provide religious conflict into every science classroom in Dover High School. And I think that kind of religious conflict is very dangerous. I say that as a person of faith who was blessed with two daughters, who raised both of my daughters in the church, and had they been given an education in which they were explicitly or implicitly forced to choose between God and science, I would have been furious, because I want my children to keep their religious faith. I also want my students to love, understand, respect, and appreciate science. And I'm very proud of the fact that one of my daughters has actually gone on to become a scientist. So by promoting this, I think, this is a tremendously dangerous statement in terms of its educational effect, in terms of its religious effect, and in terms of impeding the educational process in the classrooms in Dover. THE COURT: I was going to break about 3:00, Mr. Walczak. Is that good for you. If you want to move onto another line of questioning, this might be a good time to do it. MR. ROTHSCHILD: I'm done, Your Honor. I would just move the exhibits into evidence. THE COURT: Is there an objection, first of all, to any of the exhibits? MR. MUISE: No, Your Honor. THE COURT: We'll get those in the record when we come back from the break. I think we have a list. Why don't you compare notes with Liz and make sure that we've got a comprehensive roster of the exhibits. We'll take at least a 20 minute break or so. So my friends in the jury box who look like they could use a little caffeine, this will give you ample time to patronize the local establishments and get some caffeine and come back. That not a knock on you, Doctor. THE WITNESS: I knew I should have shown more slides, Your Honor. THE COURT: No, it's perfectly all right. We'll see you back here shortly. We'll be in recess. (Whereupon, a recess was taken at 2:55 p.m. and proceedings reconvened at 3:24 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 1 (September 26), PM Session, Part 2 THE COURT: All right. Let's -- we'll wait on the exhibits until we're finished with this witness. I don't think there's any problem in doing that. This way, we'll make sure we have an accurate tally, and in particular, if we see additional exhibits come in. With that, Mr. Muise, you're going to do the cross examination, I would assume? MR. MUISE: Yes, Your Honor, I am. Thank you. CROSS EXAMINATION BY MR. MUISE: Q. Dr. Miller, as a sympathetic Red Sox fan, I can't help but ask you whether you believe the Red Sox won the world series because of supernatural causes. And I guess that would be reversing the curse of the Bambino? A. I think it's entirely within the realm of possibility, but as I indicated earlier, it's not a scientific hypothesis. And perhaps we'll get a chance to see this year in terms of how things turned out. Q. You think it also could have probably had something to do with batting averages, on base percentages, pitching statistics, fielding percentage, for example? A. And you forgot plain dumb luck. And I certainly agree with that. Q. That would be logical to infer that they perhaps may have won based on observable empirical facts? A. Well, they certainly did win on the basis of observed empirical facts in that, for four games in a row, they scored more runs than the York Yankees, and that's an observable empirical fact. Q. Sir, you're a cell biologist? A. That's correct, sir. Q. I think you indicated you weren't an evolutionary biologist? A. That is correct, sir, I am certainly not trained as an evolutionary biologist. Q. Not trained as a philosopher of science? A. That is correct. Q. Nor trained as an expert in theology? A. That is correct. Q. Nor an expert in mathematics? A. That is also correct. I've taken courses in mathematics. I use mathematics in my teaching and in my research, but I would never qualify myself as an expert in mathematics. Q. I believe you never taught a 9th grade biology class, is that correct? A. Actually, I have taught a few 9th grade classes, but I assume you mean serving as a regular teacher for an academic year, and, no, I have not done that. Q. You obviously consider yourself to be a scientist? A. Yes, sir, I do. Q. Would you agree that any person that's trained as a scientist should have an understanding of what qualifies as a science and how the scientific method works? A. Yes, think I would agree with that. Q. In that respect, because you are a scientist, you believe you're qualified to give an opinion on what is and what is not science in this case? A. I think that most members of the American scientific community would have -- would be qualified to give opinions on what is and what is not science and, therefore, I would agree with what you just said. Q. And a biochemist is a scientist? A. Oh, of course. Q. I think we've already identified Dr. Behe as an professor of biochemistry at Lehigh University, is that correct? A. I believe that's exactly how I identified him, correct. Q. And you would consider him a scientist? A. Of course I would. Q. And he's a member of the scientific community? A. Absolutely. Q. A microbiologist is a scientist? A. Yes, sir. Yes, sir, microbiologist is a scientist. Q. Dr. Scott Minnich, you know him? A. Yes, I have met Dr. Minnich. Q. He's a professor of microbiology at Idaho University or University of Idaho -- excuse me? A. Yes, University of Idaho, that is correct, and he is a professor of microbiology there. Q. He's a scientist and a member of the scientific community, you acknowledge that, right? A. Yes, sir. Q. Sir, as an initial matter, you have no objections to the Dover Area School District putting Of Pandas and People in the school library, is that correct? A. Well, it's an interesting question. I certainly am someone who believes that libraries should be open places, and I personally believe that the people of Dover and your elected representatives on the board of education are charged with determining what books should be in the library at Dover. So I am not about, as an individual, to make certain statements as to what books do or do not belong in that library. I think that's a decision for the people of Dover and their elected educational representatives to make. Q. Similarly, sir, you have no objections to this book being referenced in a 9th grade biology class? A. Well, sir, it depends upon the nature of the reference. And again, when you say, you have no objection to it, I think that this pre-supposes that I am somehow taking it upon myself to tell the educators in Dover how they should reference or how they should conduct themselves. I certainly, for the purposes in my earlier testimony, regard this book, Of Pandas and People, to be filled with shoddy science, with misrepresentations of science, to contain serious scientific errors. And I would certainly not advise any person engaged in scientific education to use the book that was laid with errors and misrepresentations as part of their curriculum. So my advice, if I were asked, would be not to. When you say, would I object, I don't think the decision is a -- one in which I, as a resident of Massachusetts, have any right to object, as you put it, to the decisions that are made in Dover by the elected representatives of the people of Dover. Therefore, I don't object. But if I were asked for my advice, that's what my advice would be. Q. And you acknowledge that the board of education that makes those sorts of educational decisions for the school districts? A. It certainly, in the state in which I live, such decisions are made by the board of education and by their professional, their selected professional agents, such as superintendent of schools and so forth, and I assume that in the State of Pennsylvania, things work pretty much the same way. Q. Sir, the Pennsylvania State Academic Standards require students to, quote, evaluate the nature of scientific and technological knowledge, unquote. You have no objection to that standard, do you? A. Oh, not only do I have no objection to it, I think that's a good standard. I think students should do that. Q. Similarly, the Pennsylvania State Academic Standards require students to, quote, critically evaluate the status of existing theories, unquote. And they include in the list of examples five different theories, one of them being the theory of evolution. Do you have any -- A. Would you be kind enough to tell me what the other theories are, sir? I'm sorry to slow you down, Mr. Muise, but I always find the context of a statement is useful in helping to formulate a complete answer. Q. Just so the record reflects, I'm reading from Defendant's Exhibit No. 233, the academic standards for science and technology and environment and ecology. It says, critically evaluate the status of existing theories (e.g. theory of disease, wave theory of light, classifications of subatomic particles, theory of evolution, epidemiology of AIDS)? A. Thank you for reading that to me. I do appreciate it. So it does not say, as I understand your reading of it, that students shall evaluate these particular theories. It says that students shall evaluate all theories, and it lists a number of theories as examples of the theories they should critically evaluate. And in that context, I think that's a very, very good educational policy, and I would endorse it. Q. You don't have a problem that they listed the theory of evolution amongst the list of the five that they included? A. No, sir. And I also have no problem that they listed the wave particle duality of life. I think that's also worth critical examination. Q. You've written several articles addressing, I guess, what's been described as the biological challenge to evolution? A. Yes, yes. Q. And essentially disputing the concept of irreducible complexity, as we heard earlier today, is that correct? A. That's also correct. Q. You wrote an article that was entitled The Flagellum Unspun? A. Yes, I did write such an article. Q. And that appeared on your website. You have a personal website at Brown University, is that correct? A. That's correct. When I wrote the article, I put a preliminary draft of that article up. It's -- I think it's got a couple of typos and spelling errors. And then I sent it off for inclusion in a volume which has since been published. But that was a first draft of the article which is now in print. Q. In that volume in which the article was published, what was it? A. Well, I have to confess. I'm going to ask for your help here. There were two volumes which I contributed sort of essays to. One was edited by Neil Manson. Another one is edited by, I think, William Dembski and Michael Ruse. And I honestly cannot remember to which of those I sent The Flagellum Unspun. If you could refresh your memory, it would be very helpful. Q. Do you believe it could have been from Debating Design from Darwin to DNA, edited by William Dembski? A. I believe it could have been that one, and I'm sure you have it in front of you, so if you've got it, I certainly would agree. Q. Now that book, Debating Design, it was edited by William Dembski and Michael Ruse, correct? A. That's my understanding. Q. William Dembski is a proponent or advocate of intelligent design? A. That's also my understanding. Q. Michael Ruse is a philosopher of science? A. Yes, I think that's right. I think Michael is a philosophy of science at the University of South Florida, Tampa -- or Florida State. He'd be furious if I got the institution -- I'm sorry. I meant to say, yes, to your question. Q. He's an opponent of intelligent design, is that correct? A. Yes, sir, that is correct. Q. You know Michael Behe also contributed an article to this particular book? A. Yes, I believe Dr. Behe wrote an article, too. Q. His article was addressing similar topics that you addressed, this concept of irreducible complexity? A. Yes, it was. Q. And Debating Design was published by Cambridge University press, is that correct? A. I think that's right. Q. That's an academic press? A. Yes, it's an academic press that I believe is owned by Cambridge University in Great Britain. Q. In that article that you wrote, Flagellum Unspun, were you, in effect, disputing Dr. Behe's claims using scientific evidence? A. Yes, sir, I was. I examined the thesis that Dr. Behe put forward in his book, Darwin's Black Box, and I subjected that thesis to analysis by reference to other research material, results from other laboratories, and I basically showed how, in my opinion, Dr. Behe's ideas were mistaken. Q. And Dr. Behe's article, obviously, had different conclusions than what you reached? A. Yes, I think that's only fair to say, he reached different conclusions than I did. Q. You also wrote an article called Answering the Biochemical Argument from Design? A. Yes, I did. Q. That one also appears on your personal website at Brown University? A. Yes, sir, it does. I also, as I did with the first article you referenced, I wrote a rough draft of that article, and when I sent it to the editors of the volume, in this case I think the editor was Neil Manson, I put that rough draft up on the website so that people could see it and read it. Q. Again, that article you relied on scientific evidence to challenge Dr. Behe's ideas? A. Yes, sir, I did. In many cases, I relied on Dr. Behe's own examples and arguments to show why I thought these ideas were incorrect. Q. You've authored a book entitled Finding Darwin's God, is that correct? A. Yes, sir, that's right. Q. You dedicated a chapter in that book, I believe it's chapter 5, God the Mechanic, to again expressing the scientific evidence, demonstrating the scientific evidence refute Dr. Behe's claims, is that right? A. In chapter 5 of that book, which is subtitled God the Mechanic, I examined a number of arguments that are made in favor of intelligent design. Now the book, of course, was written in 1998 and 1999, so the arguments I tried to address were those that I was aware of at the time. And they included Dr. Behe's book, Darwin's Black Box. Q. Again you relied on scientific evidence to refute these claims? A. Yes, sir, I did. Q. Did you know that your book, Finding Darwin's God, is in the Dover High School library? A. I have been told that by a number of people. I've never visited Dover, so I don't have firsthand information of that, but that's what I've been led to believe. Q. Did you know that the statement that you were looking at during your initial testimony, the one read to the students, that it was modified in June to reflect the fact that there were additional materials, different books on intelligent design included in the Dover High School library? A. So if I understand your question, sir, you're telling me that there now is a different statement that was modified in June? I am unaware of that statement, and I haven't seen it in evidence, so, no, I don't think so. Q. You're unaware of that, if there has been a change in the statement, is that what you're saying? A. Well, in this proceeding, the only statement that I have seen that's composed by the Dover Board of Education is the one that was introduced into evidence this morning and I had an opportunity to comment on it. If there is another statement, I have not seen it. Q. Now your testimony today appeared to be similar to many of the arguments that you presented in those articles that we just addressed, The Flagellum Unspun, Entering the Biochemical Argument from Design, and in your chapter 5 Finding Darwin's God. Is that a fair assessment? A. I think it's a fair assessment to say that what I testified about today was similar to many of those things, but quite a few parts of it were really quite different. Needless to say, the article that I quoted that it appeared in, in Nature magazine four days ago certainly wasn't in any of those. Neither were the new biochemical results from Jiang and Doolittle and other researchers on the blood clotting cascade. Neither was the evidence on the evolution of VDJ recombination systems. So I think to be perfectly honest and to be fair and reasonable about this, a great deal of what I testified about this morning was not in any of those articles or in any of my earlier writings or presentations. Q. You debated Dr. Behe and others in various forums debating intelligent design, is that correct? A. Yes, that is correct. Q. You debated Dr. Behe and Dr. Minnich at Concordia College in Wisconsin in 2002, is that correct? A. That's my recollection as well. Q. You debated Dr. Behe and Dr. Dembski at the American Museum of Natural History in New York somewhere in 2002, 2003, is that correct? A. Yes, but to complete the record on that point, although in Concordia, I debated Dr. Minnich and Dr. Behe at the American Museum of Natural History program you're talking about, the evolution side, if you will, was represented by myself and by Robert Pennock of Michigan State University in addition to the two gentlemen you mentioned on the intelligent design side. Q. That was the one at the American Museum of Natural history in New York? A. Yes, sir, that was. Q. During these debates, you were presenting your scientific argument against intelligent design, and Dr. Behe was presenting his scientific argument in support of intelligent design? A. Absolutely. Q. You also debated Dr. Behe at Haverford College in 2002, is that correct? A. To an extent, yes. I believe, and I'm sure Dr. Behe will agree with this when he takes the stand later in the trial, that was not so much a debate as a sequence of presentations. And Dr. Behe made a presentation, I think, of 20 or 25 minutes, and then I followed it with a presentation of 20 or 25 minutes of my own. We didn't have the sort of back and forth that one characterizes as a debate. But otherwise, yes, that's correct. Q. It was a presentation something similar to what we saw today with the slides and the discussion of scientific evidence. You advancing your claim and Dr. Behe advancing his claim? A. The presentation certainly did include slides. Being a microscopist by training, somebody who takes pictures for a living, I find myself incapable of talking without slides. So therefore, I certainly included them. And I made arguments based on the scientific method. But once again, a great deal of what I brought to the Court's attention this morning simply did not exist back when we had this little discussion at Haverford College. Q. You agree Dr. Behe will have probably a point by point opposition to the evidence that you presented previously and the new evidence that you presented today? A. I actually wouldn't want to speculate on Dr. Behe's testimony. Q. Has that been the practice of your prior debates, you put up your scientific evidence, then Dr. Behe will put up his scientific evidence, demonstrating the support for each of your claims? A. I suppose that's a fair summary of any debate, which is that each side tries to marshal the evidence and the arguments that are in favor of their side. Q. And Dr. Behe was relying on scientific evidence, correct? A. Dr. Behe certainly relied on elements from the literature, from the scientific evidence. It's important to understand that scientific evidence, factual evidence, as I mentioned earlier, are isolated things. There's a fact here and a fact there. How you tie them together is really what the practice of science is all about. In these discussions and debates, it's my recollection -- and there have been a lot of them. We've had a lot to say to each other. Q. So you have a cottage industry going here between the experts? A. I don't know if it is a cottage industry or not, but certainly Mike and I see each other quite a quit. I think it's fair to say that he relies on certain elements of scientific fact to marshal his arguments. And the point that I think is relevant is basically that he makes, in his books and his writings, and he makes in these debates, a large number of claims regarding irreducible complexity, regarding the biochemical argument from design that have been repeatedly falsified by experiments, by observations in nature, and that's the point that I try to make in these debates, that these claims have been examined, considered by the scientific community, and generally falsified. Q. He disagrees with you? A. I'm sure that he disagrees with me, but, of course, he'll get a chance to say that himself, and I wouldn't want to speculate. Perhaps he'll get up here in a couple days and say, you know, I listened to everything Dr. Miller said and, by God, he's got it exactly right. THE COURT: We'd have a real story then, wouldn't we? THE WITNESS: Exactly. MR. MUISE: I doubt that will happen. BY MR. MUISE: Q. Do you think that will happen, Dr. Miller? A. I'd much rather make a bet on the outcome of the world series this year than to make that kind of bet. Q. That's probably a safer bet. And Dr. Minnich doesn't agree with your conclusions regarding the biochemical challenge to evolution, correct? A. Well, once again, I would be inclined to let Dr. Minnich's testimony speak for itself when it comes. I've -- I believe I've only met Dr. Minnich once, and that was at the discussion at Concordia College that you mentioned, which is probably three or four years ago. And I honestly don't know how Dr. Minnich's views on this subject have been changed by research that happens in science over the last several years. And I would look forward to hearing them if I happen to be in town or I look forward to reading them if I have access to the transcript of the trial. But again, I wouldn't speculate on what Dr. Minnich will say. Q. Now you debated Dr. Behe and others on the Firing Line with William F. Buckley, correct? A. That's correct. Q. And I believe you indicated during your deposition that Mr. Buckley took the side of Dr. Behe in that debate? A. Yes, I think I said that. This was a debate on the PBS program called Firing Line, and the title of the debate, I think, is important to understand. The title of the debate was Resolved: The evolutionist should acknowledge creation. It wasn't acknowledge design. It was acknowledge creation. So on the creation side were Dr. Behe, a writer named David Berlinski, a law professor at the University of California named Phillip Johnson, and William F. Buckley. On the side defending evolution were myself, Eugenie Scott from the National Center for Science Education, Barry Lynn from Americans United for Separation of Church and State, and Michael Ruse, the philosopher whom you've already made reference to as the editor of one of these volumes. Again, the subject of the debate was that evolutionists should acknowledge creation. Q. In addition to the articles that we've mentioned previously and the public debates, you debated Dr. Behe in print in Natural History magazine, is that correct? A. Yes, that is correct. Q. And I believe he contributed a one page article, and then you have had an opportunity to rebut that article without him having an opportunity for a reply, correct? A. Well, I think it would be useful to the Court to describe that issue of Natural History magazine more fully, more completely. And my understanding was that the editors of Natural History decided that there was enough interest among the readership in this idea called intelligent design that what they invited three leading proponents of intelligent design to do was to take a full page of Natural History, unedited, say anything they wanted, and they then invited three scientists to respond. The three people they invited, I believe, were Dr. Behe, William Dembski, and Jonathan Wells. All three of these people in addition to their other positions are, I believe, senior fellows of the Discovery Institute in Seattle, Washington. They then asked three scientists to respond to each of those. So, yes, that's right. Dr. Behe's essay was given to me, and I had a certain space to respond to it, and that's exactly what I did. Q. These articles in this magazine are sent out for scientific review, is that correct? A. Well, actually, Natural History is not really a scientific journal. It deals with scientific topics. And certainly the editorship is concerned with scientific issues, but the whole format and the premise of this point, counter point in Natural History was to take three people who were known as leading advocates of intelligent design, let them have their best shot, and the only editing that I'm aware of that was done was copy editing, trying to make sure it would fit in the space, not scientific review, not peer review. And I certainly know that my response to it was handled in exactly the same way, that my copy was edited so that it would fit, and so that it was relevant in terms of rely to what Dr. Behe wrote, but my copy, and I think Dr. Behe's copy was not sent out for peer review in the ordinary sense of a scientific paper. Q. You also wrote an article called Life's Grand Design that was published by MIT in Technology Review Magazine? A. That is correct. Q. And this article dealt with some of the aspects of the intelligent design argument, is that correct? A. Yes, this article was solicited by the magazine technology review after I gave a presentation on the evolution creation controversy, I think at the AAAS, American Association for the Advancement of Science meetings in 1993. And they asked me if I would write an article about the emerging intelligent design movement. I wrote this article called Life's Grand Design in 1994, and just to refresh your memory about the testimony this morning, 1994 was before I had met or heard of Dr. Behe, before I had seen the book Pandas and People, before Dr. Behe's book, Darwin's Black Box, was published, and before I participated in any other debates with respect to intelligent design. Q. I believe you testified in your deposition that this magazine is one that is intended for the scientifically literate, but not necessarily considered a scientific journal, is that correct? A. Yes, I believe that's correct. I believe, in essence, Technology Review is almost the alumni magazine of the Massachusetts Institute of Technology. It is a sent to MIT alumni, and it concerns itself with discussion of issues of science and technology that presumably are of interest to graduates of that university. Q. Is there a hard and fast definition between what is scientific journal and what is a journalistic publication about science? A. I think the honest answer to that question is, not a hard and fast definition. But basically, a scientific journal in the more general sense is a journal that publishes the original results of scientific investigation, experiments, materials and methods, techniques, and presents original, never-published-before scientific data. In fact, a scientific journal of the sort that I have edited, such as the Journal of Cell Biology, actually has a rule, and that is that, you cannot send into that journal any results from any experiment that have been published anywhere else before. So we want only original micrographs, original gels, original DNA sequences, original experimental results. Some of the other journals that have just now come up in the discussion, Natural History magazine, Technology Review. And let me pick a couple of other journals that are well-known. Scientific American, Discover magazine are journals or magazines that publish science, but they don't publish original scientific work. They're not subject to peer review in the usual fashion. And, therefore, if one had to make a rigorous definition of whether or not those are scientific journals, the answer would be, no. Q. Now, sir, you testified about peer review in the sense you are referring to it as a staple of science, correct? A. Yes, I did. Q. Is there a time when peer review became that, a staple of science? A. Well, you know, you're asking for more in the history of science than I really find myself qualified to answer. And I'm not really a historian in the history of science. But what I can tell you is that, certainly during my entire lifetime -- I was born in 1948 -- the scientific journals that I referred to as leading scientific journals, Proceedings of the National Academy, Nature, Science, all these journals have existed. They have all used a peer review process very similar to my description. And, therefore, the top scientific journals within my entire lifetime have all used essentially the peer review process that I described in my testimony earlier today. Q. Well, prior to the adoption of this peer review process, you would agree that what scientists were doing was still science? A. I think there are many ways and many forms to do science. But peer review in the formal sense of how an article gets into a journal today in many respects did not really exist; for example, in the 19th century when the institutions of science were just beginning to be developed. But it's important to appreciate as well what peer review actually means. And what it means is subjecting your scientific ideas to the open scrutiny and criticism of your colleagues and competitors in the field. That has always been part of science, certainly well into the early part of the 19th century. Q. In terms of the modern description of this peer review, none of that standard, Darwin's Origin of Species wasn't a peer reviewed book as well? A. Well, first of all, books are rarely peer reviewed today, yesterday, ever. For example, when I wrote Finding Darwin's God, I did what a lot of writers do, and I bet ya what Dr. Behe did when he wrote Darwin's Black Box, which is, I thought about a book I'd like to write. I put together a proposal. I circulated a proposal to a few publishing houses hoping I could find an editor and a publisher who was interested in it. And when they were, we sat down, signed a contract. I got very excited, sat down and wrote the book. The sort of review that went into that book was interaction between me and an editor, me and a copy editor, and finally myself and a fact checker. And I bet ya the same process went into Dr. Behe's book. That doesn't qualify as peer review any under circumstance. Now you raise the specific example of a book written by Darwin, called the Origin of Species. And I think it's important -- again I'm not a historian of science. I'm a real amateur here. My understanding of how the ideas in that book were developed was that, Charles Darwin wrote many letters, essays, and small articles which were read before the royal society in London. The discussion and criticism of those individual letters which were read was a normal part of the scientific process in Great Britain in the 1840's and 1850's. So that most of the ideas that Darwin incorporated in the Origin of Species actually had been subjected to something that today we would recognize as peer review, which is advice, criticism, analysis, critical analysis by one's colleagues. The publication of that book, was that a peer reviewed publication? Of course not, for the reasons I've given. Were Darwin's ideas themselves subjected to peer view? The answer is, as it existed in the 1840's and 1850's, yes. Q. You testified you wrote a critique of Dr. Behe's book, Darwin's Black Box, is that correct? A. Yes, after his book was published, I believe I wrote a critique of it, and then I subsequently posted that critique for public inspection on the Internet. Q. That was a scientific critique of his book? A. Well, it depends in what sense you mean scientific. The issue, my critique of the book was based on my understanding of the scientific literature and scientific fact, so it certainly was a scientific critique as opposed to, let's say, a grammatical critique or literary critique, neither of which I would certainly be qualified to do. Q. And I believe Dr. Behe has responded to his critics in various articles and publications? A. Well, my understanding is that, at the website of the Discovery Institute, there is an article that I've seen once or twice called a Response to My Critics, written by Michael Behe. If that is what you're referring to, then my answer is, yes. Q. Is that the only publication that you're aware of where he's defended his arguments? A. No, I don't think so. I think the Discovery Institute routinely publishes comments by their fellows on a variety of issues, and I'm sure that -- I'm not aware of all of them -- but I'm sure that Dr. Behe has a large number of articles that have been posted there on the web, and he may have published a few such responses in various magazines and popular media that I'm not aware of, and I'm sure they're out there. Q. One of them being, for example, Debating Design, the same book that you contributed an article? A. Well, certainly Dr. Behe had an article in Debating Design. That's a question you've already asked me, and I've already answered. I'm sure that Dr. Behe in that article addresses many of the criticisms of his ideas. Q. Sir, I believe you indicated falsifiability is a factor you consider to determine whether something is science? A. I think -- I believe what I said is that, in order to qualify as a scientific theory, the scientific theory must make predictions which lead to testable hypotheses. Q. If you can falsify it, it's a scientific theory? A. If you can falsify it, it's a scientific theory? I'll repeat what I said, because I think that was an answer to your question. That is, a scientific theory should lead to the generation of testable or falsifiable hypotheses. So if a theory does not and cannot lead to the generation of falsifiable hypotheses, it doesn't qualify as a scientific theory. Q. Now, sir, as a cell biologist, you engage in laboratory experiments? A. Yes, sir, I do. Q. You don't have occasion though to apply natural selection to your experimental work, is that correct? A. In the sort of work that I do in the laboratory, I do not directly do experiments based on natural selection. But it's also fair to say that several of my scientific papers have been undertaken precisely because I wanted to examine organisms which were related to other organisms in an evolutionary sense and, therefore, some of my work has indeed had evolutionary implications. Q. I just want to make clear, with regard to the mechanism of natural selection, that's not something that you actually apply hands-on in any of the experiments that you do? A. It is fair to say that I have never carried out with my own hands and in my own research area an experiment to test the mechanisms of natural selection, that is correct. Q. Now a technique used by molecular biologists is known as the knock-out technique, correct? A. Yes, I'm aware of a technique known as targeted gene replacement, which is popularly called the knock-out technique. Q. One classic way to understand the importance of a particular component of a system is to take that component away and see how the system works? A. Yes. As a matter of fact, it's a very useful technique. So if one has a gene and wants to know how important it is to function, what one can do is to engineer a targeted gene replacement, a knock-out, and then generate embryonic stem cells -- this is often done in mice -- and those embryonic stem cells are then fused into an existing embryo. You then, hopefully, grow up a mouse in which there's a patch of cells that has the targeted replacement. You find a mouse -- sometimes it takes a while -- in which these targeted replacement cells are in the gonads, in the reproductive organs. So hopefully, you've generated a male mouse in which you have the targeted replacement in the testes, a female mouse in which you have a targeted replacement in the ovaries. You cross them. Then you get an offspring in which both genes have been knocked out. And then you can study the effect of losing that gene. Q. Obviously, that's a legitimate technique employed by scientists? A. Of course, it's a legitimate technique. It's a tool and technique that's often used -- it's a technique that is tricky because completely knocking a gene out can sometimes have unexpected implications. You have to interpret it carefully. But it's used all the time in research laboratories around the world. Q. So you would agree that the cell is a collection of protein machines? A. Would I agree that the cell is a collection of protein machines? I would agree that the cell contains a great many protein machines. It has a collection of them. It's also a great deal more. It's also a collection of complex carbohydrates, lipids, membranes, compartments, barriers, ionic radiants. But, yes, I would agree the cell also contains a collection of protein machines. Q. Scientists refer to individual proteins or collections of proteins as being part of the DNA replication machinery, the proteins synthesis machinery, and the ion transport machinery, is that correct? A. It is very common in molecular and cellular biology to use the term machine as a figure of speech to reflect a shorthand to a number of proteins that act together for a particular purpose. Q. Well, these number of proteins acting together for a particular purpose actually operate like machines that we could recognize in the human world? A. Well, only by analogy. And what I mean by that is, let's take a machine called dynein. Dynein is often called a molecular motor. It generates force. It's a very large, very complicated protein that has basically two heads on it. And the dynein heads will interact with other proteins. Dynein, in effect, in a molecular level looks almost like a large blob with two legs. If I can draw your attention to the front of the podium up here. Dynein will make an interaction with one compound, and then random molecular forces will wave the rest of it back and forth until it makes another connection. This will then release. It will wave back and forth and make another connection. So, as a cartoon image, dynein almost looks like somebody walking. I'm not really aware of any machine that actually works by that particular mechanism. But we nonetheless refer to dynein as a molecular motor or molecular machine because it's a very useful figure of speech, a kind of shorthand to remind of what it does. In the case of dynein, it generates force and movement. Q. Don't we regard the protein as a collection of interacting parts in a way that is similar to the machines that we understand the world today? A. I'm sorry. Did you say, can we regard proteins -- Q. As a collection of interacting parts? A. Not always. Proteins are compounds that are built out of polypeptides. And there are small and simple proteins like insulin, for example, that has only 60 or 70 amino acids, which is really -- an insulin is really not a collection of individual parts. It's one coherent part. There are other more complex proteins. For example, the C3 component of compliment that I mentioned near the end of my testimony this morning, is a complex protein that's made up of individual segments or modules that arose by gene duplication. And in that respect, those individual segments or modules quite clearly are parts, all of which work together to make the concerted function of the machine possible. Is that a complete answer to your question, sir? Q. I guess they use the term machines because it's a metaphor that makes it as closely replicated to what we understand as machines? Is that the utility of that metaphor? A. Yes, I think the utility of the metaphor is that we think of the machines that we build in the human world as composed of a number of parts to achieve a particular end. In the cell, certainly. There are many assemblies of proteins and other components where the parts interact and a particular result comes out of this. And the metaphor of the machine or the metaphor of the motor that I just mentioned or the metaphor of the pump or the metaphor of the copying machine is often used in biology just as a shorthand to help us remember what these individual components do. Q. Bruce Alberts, he's the president of the National Academy of Scientists, is that correct? A. No, it's not. Bruce is no longer the president of the National Academy of Sciences because his term has expired. Q. When did his term expire? A. A couple months ago. Dr. Alberts is the outgoing -- it's all right. Alberts is the outgoing president of the National Academy of Sciences and a very, very highly respected molecular biologist. Q. And he wrote an article that referred to protein to molecular machines, correct? A. He wrote an article in the journal Cell called Educating the Next Generation of Cell Biologists. And that was subtitled, The Cell is a Collection of Protein Machines. And I might add, I find that to be a useful and valuable article, and I often assign it to the upper level students in my cell biology course. Q. In that article, he suggests that the new modern biologist ought to take courses in engineering so they can understand the intricacies of these machines that we find in the cell, correct? A. He does indeed make that suggestion. Q. Sir, would you agree that science involves a weighing of one explanation against another with respect to how well they fit the facts of experiments and observations? A. I would agree that science involves the weighing of one natural explanation against another with respect to how well they fit, the results from observation and experiment. Q. Would you agree that all science consists of looking at the evidence and then drawing inferences from it? A. I think that part of science is looking at the evidence and drawing inferences, but I hesitate to agree completely with your question because I certainly think that drawing just any inference from data is not necessarily scientific. Q. I believe in your deposition, one of the examples we used in defining science the way that I just asked you that question was paleontology, correct? Do you recall? A. To be perfectly honest, I'm sure you're right. But I can't remember -- the deposition went on for nine and a half hours. And to be perfectly honest, there are parts of it I have forgotten. But I'm willing to agree that, yes, it probably did deal with that. Q. Paleontology is a science which consists of looking at the evidence, the observable evidence, and then drawing inferences from that evidence? A. It consists -- paleontology consists of looking at the accumulated evidence of past life and then applying the scientific method to make scientific testable inferences, if possible, about the nature of life in the past and also about the nature of biological change. Q. I believe you testified previously that science doesn't prove things, is that correct? A. Yes, I believe I did say something like that. Q. Is it accurate to say that science disproves things? A. But science does disprove things. And, in fact, an essential element of the scientific process is -- this is why the testable hypothesis is so important. A theory is not a useful theory unless we can generate it from -- generate from it testable hypotheses. And science will occasionally disprove those hypotheses. And I mentioned earlier, I think I mentioned rather briefly, that the most popular hypothesis as to how amino acids are joined together inside the ribosome which has been that ribosomal RNA acts as a ribozyme, an acid based catalyst, to put those together. Now looks as though it's been disproved by experiments that I mentioned before that were done by Al Dahlberg at my university. That's a classic case of a really, really useful testable scientific hypothesis whose disproof leads us, hopefully, in a more productive direction. So in a few years, we'll find out what the real chemical mechanism is of bond formation. Q. Sir, during your direct testimony, you discussed the term evolution as having sort of different meanings or can be used in different ways, correct? A. Yes, I did. And I believe that -- and I'm sure you'll correct me if I don't have this quite right. I believe I pointed out that the word evolution in English is often used to refer to two quite different things. Sometimes the word evolution is used to refer to what happened in the past; namely, the life of the past changed into the life of the present. And we regard evolution simply as the record of change in natural history. I think more commonly in the context of the proceedings in this courtroom, what we mean by evolution is evolutionary theory, which are the mechanisms which actually drove that change and changed the life of the past into the life of the present. So I certainly did point out those two quite different meanings of the word evolution. Q. In the first meaning, is it proper to say it can be regarded as a historical fact? A. I certainly regard the record of life in the past as historical fact. And I think the science of geology, by using the testable principles of natural science, has established that the earth is old, that the geological ages are authentic, and that the pattern of life's change that we see is a factual pattern. So I think, yes, I generally agree with your question. Q. Evolution in the second sense is where evolution is a theory, correct? A. That is correct. And evolution is a theory in that it unites a whole series of mechanisms in terms of an effort to try to explain the process of evolutionary change that characterizes the natural history of life on earth. Q. And as a theory, the theory of evolution is not a fact? A. Sir, no scientific theory is a fact. All scientific theories are based and supported by scientific fact. In that respect, evolution is not exceptional. Q. Would you agree that Darwin's theory of evolution is not an absolute truth? A. I certainly would for the very simple reason that no theory in science, no theory is ever regarded as absolute truth. We don't regard atomic theory as truth. We don't regard the germ theory of disease as truth. We don't regard the theory of friction as truth. We regard all of these theories as well-supported testable explanations that provide natural explanations for natural phenomena. Q. Included in that list would be Darwin's theory of evolution? A. I think you've already asked that and I've already answered that. The theory of evolution is not exceptional. It is a scientific theory, like the other scientific theories I have mentioned. Q. Darwin's theory of evolution continues to change as new data are gathered and new ways of thinking arise? A. I would agree that all scientific theories continue to change as we advance in our understanding of science and as we accumulate scientific knowledge. And once again, the theory of evolution is not exceptional in that respect. Q. Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered? A. No, that's not quite right. All scientific theory is subject to testing as new evidence is discovered. So to say, because it is a theory, it continues to be tested, really misstates the scientific status of evolution. Everything in science is subject to testing. Everything is subject to revision. Everything in science is subject to critical analysis. And evolutionary theory is no different from that. Q. What about evolution in the first sense, the historical fact? Does that continue to be tested as new evident is discovered? A. We always in science continue to examine to see if facts are really factual. And one of the statements that I was asked to comment on this morning is that, very often facts in science change and theories don't. And that sounds paradoxical. But what it means basically is, if we have a factual observation, for example, one of the fossils that was discovered in the Burgess Shale, which is a very famous fossil formation in British Columbia, which is part of the Cambria, one of the fossils was once regarded by Alexander Walcott, who discovered the Burgess Shale, as an entire organism. He classified it, and I believe Walcott might have even created an entire phylum, which is a major category to put this organism in. Later on, more careful investigators, notably Simon Conway Morris, who's a British paleontologist, went back to the museums. They looked at the same fossils, the same facts, and they discovered that what Walcott thought was a whole organism was, in fact, the leg of another organism. And, therefore, this particular fact turned out not to be correct and the fact had to be revised. All of it nonetheless still fit into the framework that the animals of the Cambrian are well represented in the Burgess Shale. They turn out to be the ancestors of the animals around today. And they represent a variety of unique biological forms. So when you place particular emphasis on the testing of Darwin's theory of evolution, I would point out that facts in science change well, as well, and that everything we do in science is subject to revision and to change as we get better data and as we go back and we re-examine what we thought were facts in the past. Q. So it's accurate then to say, Darwin's theory continues to be tested as new evidence is discovered? A. Sir, it is accurate to say that all scientific theories continue to be tested as new evidence is discovered and all scientific facts are subject to examination as well. Q. And Darwin's theory being included in that list of all scientific theories? A. As I testified earlier, Darwin's theory is not exceptional in that regard. Q. Sir, isn't it true that all of science is filled with gaps in a sense that scientists fill with unanswered questions using gaps as an unanswered questions as a definition of gaps? A. If you define an unanswered question as a gap, then it certainly is true, that science itself is filled with unanswered questions. And that includes not just biology, but includes, for example, physics where there are enormously unanswered -- enormous numbers of unanswered questions about the fundamental nature of matter about the gravitational force, about the strong and weak nuclear force, and a whole variety of other issues. So it's absolutely correct that science is filled with unanswered questions. I have to tell you, sir, that I would not refer to an unanswered question as a gap. I would not say that we have gaps in the theory of gravitation. I would say there are things about gravity we don't understand. Q. If we understood gaps to be unanswered questions, is it accurate to say that there are gaps in Darwin's theory of evolution? A. Once again, let me reiterate the point here. That is, that I do not agree to your substitution of the word unanswered question with the word gap. To me, it makes absolutely no sense. Would I agree that there are unanswered questions that fall within the theory of evolution? Yeah, sure, absolutely. Q. I'll represent to you I'm reading a statement from your biology book, and I'm just going to ask you if this is true. A stew of organic molecules is a long way from a living cell and the leap from non-life to life is the greatest gap in scientific hypotheses of earth's early history. Is that your statement? A. Sir, would it be possible for me to see the whole page and the context in which the statement is made? Q. Sir, I'm handing you what's previously been marked as Defendant's Exhibit 214. MR. MUISE: Your Honor, we have additional copies if you need us to hand them up at this point or -- THE COURT: Well, I have one. I don't know -- I guess I'm the most important person to have one. MR. MUISE: That's correct. THE COURT: We'll go from there. THE WITNESS: I'm sure that's correct, Your Honor. THE COURT: That remains to be seen. BY MR. MUISE: Q. Page 425. A. Yes. I'm flipping to it right now, sir. Okay. And I'll -- I will explain -- I'll try to explain exactly what I would mean by that sentence. I'll read it again. A stew of organic molecules is a long way from a living cell and the leap from non-life to life is the greatest gap in scientific hypotheses of earth's early history. I think in this particular case, the word gap is entirely appropriate because what we're looking for is missing evidence. It's entirely appropriate to refer to missing evidence as a gap. In this particular case, we understand from experiments that have been done in the laboratory how molecules can, to an extent, self-organize and even self-replicate. But we don't really have an understanding of how such molecules could have gathered together, pulled together the other structures that they need, and to produce a living cell as we understand it today. So I think that is indeed a gap in the sense that we have missing evidence. And I mentioned earlier that I have gaps in my understanding of my own family's ancestry in the sense that I have missing evidence. I don't know what's there. Now that's a gap in evidence. That's not a gap in a theory. And I think that's sort of the point that I had been trying to make. Q. So there's no missing evidence in Darwin's theory of evolution? A. Okay. Let's put it this way. There are many periods in earth's history where we don't have a complete historical record, just as there are periods in the history of the United States in which we don't have a complete historical record. If one refers to Darwin's theory of evolution by saying, do we have a complete record of biological change in the past, the answer to that is, no. But in terms of gaps in the theory, again, I think you're jumping back and forth between the theory and the nature of the evidence. Is there indeed evidence that might support the theory of evolution that we don't have? Yes. But is there a gap in the theory itself, a gap in the framework of explanation? That's essentially what I'm saying, no. I don't buy that at all. Q. Should we regard Darwin's theory of evolution as being tentative? A. We should regard all scientific explanations as being tentative, and that includes the theory of evolution. Q. Darwin's theory of evolution is incomplete and unfinished, isn't that correct? A. All science is necessarily incomplete. On the day that physics becomes complete, for example, it will be time to close every department of physics in the United States because we'll know everything. I don't expect to see that happen. But it is a fair statement that all science, including biology, including Darwin's work on evolution or the evolutionary theory, I should say, is necessarily incomplete. Q. Is it true that scientists do not know enough about all structures in the cell to describe how they all work or how describe how evolution could have produced each of them by step-by-step Darwinian processes? A. Well, you ask a very interesting question. And I, first of all, am going to enthusiastically agree with the first part, which is that scientists certainly do not understand enough about all of the structures in the living cell to understand how they work. That really is the business, my business and the business of Dr. Behe. Because the answers to that questions are going to come out of genetics -- sorry. They're going to come out of biochemistry. They're going to come out of cell biology and maybe molecular biology and genetics as well. I'll answer the second part of your question this way. Until we understand the first part, which is how everything works, we can't even begin to understand how things evolved. So we will have to have an absolute and complete and total understanding of how everything in the cell works before we can even begin to put together an understanding of how it evolved. Q. So there are open questions there? A. I certainly hope so, because if there are no open questions in my field, I've written my last grant proposal. I don't think so. Q. Isn't it true that scientists still debate and touch questions as to how new species arise? A. Do scientists still debate such questions such as how do species arise? The answer, sir, is, absolutely. There is general agreement within the scientific community that speciation, which is to say the origin of new species, can be explained by a variety of natural causes. And several examples of speciation are indeed well-known and well-understood. But as to which of several mechanisms that can actually drive speciation is the predominant one or the most useful one, there is a lot of controversy within science about that, no question. Q. Scientists still debate the question why species become extinct? A. Scientists certainly debate that question. They don't debate the question as to -- well, sorry. Let me sort of strike that and sort of rephrase everything. Extinction, for the most part, is a historical process. It's something that, for most of us, happen in the past. We do have examples of extinction that actually happened in the present time. And sometimes we can see how that's actually happening. But most often, extinction occurring in the past, in the fossil record, for example, is an event, meaning the disappearance of a particular species, and we don't always know whether that species starved to death, whether it was driven to extinction by a predator, whether it was terminated by disease, whether its habitat was destroyed by earthquakes or volcanic eruptions. And do scientists still debate those issues? Of course they do. I would point out as an example, a colleague of mine named Bruce McFadden, who is an expert in the evolution of the horse, he works at the University of Florida, he's published a number of treatises trying to trace the evolution of a horse and trying to focus in on exactly what the forces were that drove most of the historical antecedents of the horse to extinction. In some cases, he's pinned it down to diet. In some cases, he's pinned it down to habitat loss. In other cases, he's not sure. So that's a long yes to the question you asked. Q. It's an open question? A. There are many open questions in science. There are some examples where we know what drove an organism to extinction. I can give you an example right now. The passenger pigeon. We killed it. Human beings hunted passenger pigeons to extinction. The same thing with the dodo. Those are not open questions. Those are closed questions. Are there examples of extinction for which we don't know the answer? The answer to that is, yes. Q. So the origin of life is an unsolved scientific problem, is that correct? A. I think it certainly is fair to say that the details of the origin of life are unsolved. Q. Would it also be fair to say, it's an area where there is little direct fossil evidence? A. Well, not entirely, because actually, there is fossil evidence when the first living cells appeared on this planet. It's about three, three and a half billion years ago. So we do know when the first simple cells appeared, and we also know when the first more complex cells, we know when they appear. But it's also true that we don't really have biochemical fossils that could have shown the kinds of self-replicating molecules that might have preceded that first living cell. THE COURT: Mr. Muise, I'll give you about a seven minute warning, unlike the NFL, where you get a little bit more time, and any place you want to wrap up from here on that you think is an appropriate break time, you can do it, because we'll go to that point today. But you can proceed. MR. MUISE: Are we looking for a break for the afternoon or for the -- THE COURT: No, for the day. MR. MUISE: For the day? THE COURT: For the day. MR. MUISE: I have about four or five more questions in this area. If I can try to get through them, that will be helpful. THE COURT: Absolutely. Sure. MR. MUISE: Thank you. BY MR. MUISE: Q. Dr. Miller, the origin of DNA and RNA in the evolution of cells is an unanswered scientific question, is that true? A. Certainly. The origin of those compounds is not completely answered. But one of the things that is rather interesting, and the recent work of Stanley Miller, who's done a fair amount of origin of life research, has shown this, is that the current simulations of primitive earth atmospheres, under certain circumstances, can give rise to the nitrogenous bases which are found in RNA. It turns out to be rather easy in the simulation experiments to produce adenine, and I believe also to produce cytosine, which are two of the bases. Now knowing that doesn't answer the complete question as to how the complete RNA or DNA molecule evolved, but it does show that some of the building parts of it can be produced spontaneously in the laboratory under conditions that simulate the primitive earth. Q. That's related in a sense, is it not, to the fact that the origin of life is an unsolved scientific problem? Is that related to the experiments you just described? A. Yes, sir, it is. Q. Now there are many scientists who think that Darwin's original formulation of the mechanism of evolution was either incorrect or incomplete on the basis of much better current information on how genetics, molecular biology, and what is called adaptation actually works, is that true? A. Sir, not only is that true, but I'm one of those scientists, and if he was around today, Charles Darwin would be one of those scientists. Darwin, of course, didn't know anything about biochemistry. He didn't know any genetics because genetics hadn't been invented. And we now understand evolution in much greater detail than Darwin ever could have. So when you say there are many scientists who believe that Darwin's theories had to be, whatever you said, updated and so forth, the answer is, yeah, all of them do. I'm one of them. And so would Charles Darwin if he was around to see it. Q. Sir, many scientists would opine that Darwin's ideas about evolutionary change were inadequate on the basis of current discoveries related to genetic recombination, transposable genetic elements, regulatory genes, and developmental patterns? A. No, I wouldn't agree that. You said that many scientists would agree that Darwin's ideas about change were inadequate based on these. Now what Darwin basically said was that variation appears spontaneously in species. He didn't know where that variation came from. And every example that you just cited is an example of where variation could come from. All of these, however, fit within the general framework of evolutionary theory. So I would rather say that Darwin's ideas were incomplete rather than inadequate. Because Darwin was, if you read the Origin of Species in detail, you'll see that Darwin is quite open about not being really sure where variation comes from or how characteristics are passed along from one generation to another. The fact that we now know where variation comes from and we now know how information is passed along, doesn't mean his ideas were inadequate or -- it simply means that they were incomplete compared to what we understand now. They nonetheless fit within his framework. Q. Now during the deposition you gave, Dr. Miller, where you indicated the lengthy deposition, you use the term inadequate. And let me read from page 113. And I can show it to you. Starting on line 21. Now in discussion -- A. If you would just give me a second to get to page 113. Q. Do you have a copy of your deposition? A. I have it right here. Very good. Thank you. Q. Starting on line 21, if you could read from the deposition? A. Yes. Let's see. What I said in the deposition, starting with line 12 is, quote, Now in discussion of this issue, it is possible to bring in the opinions of many scientists who say that Darwin's ideas about currently -- sorry, that Darwin's ideas about evolutionary change were inadequate on the basis of current discoveries relating to genetic recombination, transposable genetic elements, regulatory genes, and developmental patterns; therefore, Darwin's ideas need to be updated in view of current discoveries, but these scientists criticisms of evolution would in general not dispute the idea that the mechanisms of evolutionary change which fully understood at the natural level are still sufficient to bring about the change that the evolutionary process requires. Q. So your use of the word inadequate, you're saying, in your deposition was not proper? A. Well, I'm not saying, sir, that it wasn't proper. I'm just saying that today, upon reflection and thinking about it, I would prefer incomplete to inadequate. I read further in my deposition to make the point, which I think is the coherent point, which is to say that all of these ideas, whether Darwin's idea were incomplete, inadequate, half-baked, or however you want to describe them, can nonetheless fit within the general framework of evolutionary theory that he outlined. That was the gist of this entire statement in my deposition and that certainly would be my testimony today. Q. Do you agree that horizontal gene transfer makes it difficult to trace common dissent through micro organisms? A. Oh, I certainly do. Q. That was the studies of Carl Woese, I believe, demonstrated that? A. Carl Woese was the first person to successfully demonstrate horizontal gene transfer, the transfer of bits and pieces of DNA from one micro organism to another. And the fact that this mechanism is widespread among bacteria and viruses means that it's very difficult to trace the pathway of common dissent. That's true. And that work started with Woese. It's been continued by many others. Q. Would you agree that scientists disagree about the relative importance of natural selection, sexual selection, chance, species, hibernation, and other factors which all influence evolution? A. Yes, sir, I would agree to that. Scientists certainly do disagree about those points. Q. These different ways in which different phenomena and nature might be explained? A. I suppose the answer to that is, yes. All of the forces that you just mentioned are patterns that relate either to natural selection or to the generation of variation within the species, which are really part of the evolutionary process. Do all of those processes occur in nature? Yes. Are they used from time to time to explain various natural phenomena? Yes. Q. Could they be considered alternate theories that explain evolution? A. No, I don't think so, because I think what you've done, sir, is to cite a number of phenomena and forces. Sexual selection, for example, is not a theory. It's a process. And horizontal gene transfer, once again, is not a theory in the sense of an explanatory framework. It's a process. I think all of these are forces that can produce and rearrange genetic change within the explanatory framework of evolutionary theory. MR. MUISE: Your Honor, I'll pick up from there tomorrow morning. THE COURT: All right. I think we've absorbed quite a bit of information today. We'll start again with the witness tomorrow morning at 9:00 a.m. Thank you, Mr. Muise. Thank you to all counsel. Ladies and gentlemen, we'll see you tomorrow. We'll be in recess until 9:00 a.m. tomorrow morning. Thank you. (Whereupon, the proceeding adjourned for the day at 4:30 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 2 (September 27), AM Session, Part 1 THE COURT: Be seated, please. Good morning to all. We welcome you to Day 2, and we're going to continue with cross examination. Mr. Muise, you're prepared I assume? MR. MUISE: Thank you, Your Honor. THE COURT: You may proceed. CONTINUED CROSS EXAMINATION BY MR. MUISE: Q. Good morning, Dr. Miller. A. Good morning, Mr. Muise. Q. Sir, is evolution random and undirected? A. I don't think that that is an appropriate scientific question. First of all, evolution most definitely is not random. There are elements of evolutionary change that are unpredictable, but the principal force driving evolution, which is natural selection is most definitely a non-random force, and then the second part of your question, undirected, that requires a conclusion about meaning and purpose that I think is beyond the realm of science. So my answer for different reasons to both parts of your question is no. Or excuse me, perhaps more aptly put, science cannot answer the second part of the question. I think that's a more accurate way to put it. Q. Is a student believes that this was a scientific complaint -- let me strike that. If a student believes that this was a scientific claim, would that be a misconception? A. If a student believed that it was a scientific claim that evolution was random and undirected, would that be a misconception? And I think my answer to that is yes, that would be a misconception of what science can state about evolution. Q. Sir, in your 1995 edition of Biology, I believe it's the Elephant Book? A. That's correct. It's generally known by that name. Q. Did it not state in that book, "It is important to keep this concept in mind. Evolution is random and undirected," and the part "evolution is random and undirected" was in bold print? A. To be perfectly honest, which of course I swore to be, I don't remember if it was in bold print or ordinary print, but I'm sure you have a copy of that book, and I'm sure that you'll show it to me and refresh my memory. Q. You're very perceptive. May I approach the witness, Your Honor? THE COURT: You may. Q. I hand you what's been previously marked as Defendant's Exhibit 210. A. And in response to your question, sir, I note under Section 30-2 on the second page of the document you gave me, the complete sentence reads, "As we do so it's important to keep this concept in mind," and it is indeed in boldface, "Evolution is random and undirected," that's correct. So yes, sir, it does say that. Q. Now, isn't it true when you write your textbook, a boldfaced sentence is a way of telling the students that this is a key idea? A. Yes, sir, it is. Q. Now, you testified previously that that's not a scientific concept, correct? A. I did indeed, sir. Q. Why was it in your book? A. It was in my book because as I'm sure you've also looked at, that statement was not in the first edition of the book, it was not in the second edition, it was not in the fourth edition, it was not in the fifth edition. It was not -- Q. My question is why is it in this edition? A. I'm trying to set the context so I can give a full and complete answer to your question. So the interesting thing is that this is the only edition of any of the books that we have published, and probably eleven different editions, that contains that statement, and the reason for that quite simply is that I work with a co-author whose name is Joseph Levine, and Joe and I work together on many of the chapters in the book, but many of them we write separately and individually, and this was a statement that Joe inserted when we did a rewrite of many sections of this book for the third edition. I have to say that I missed the statement as I was going through Joe's chapters, and I feel very badly about that. When this was first pointed out to me, the third edition of this book was in print, I immediately went to Joe, I said Joe, I think this is a bad idea, I said I think this is a non-scientific statement, I think it will mislead students. Joe agreed. We immediately took it out of the book, and that's why I emphasized that it did not appear in subsequent editions. So what you're looking at, sir, is a mistake. Q. Isn't it true that he put that in there because he was influenced by the writings of Steven J. Gould? A. We had a conversation about that, and among the reasons that Joe cited was that he had read one of Steve Gould's books called "Wonderful Life" in which Gould emphasized what Gould regarded as the indeterminate character of evolution, and from that I think Joe made what I still think is a misinterpretation of Gould's central idea in "Wonderful Life," which is to say the indeterminate or the unpredictable nature of evolution Joe misinterpreted to say random and undirected, and I think Joe agreed that he had made a mistake, and that's one of the reasons why we changed it in the next edition, sir. Q. Now, I believe you testified that about 35 percent of high schools in the United States use your textbook, one variation or version or another? A. Yes, sir, I did. Q. Is the 1995 elephant book still being used by high schools? A. I'm sure you can find a few, but because the average book is used by a high school in the United States for about six to seven years, I think it's fair to say that very few school districts use the third edition of this book. Q. Do you know if Prentice Hall is still selling this version as a science textbook? A. I wouldn't be at all -- I wouldn't know that for a fact, sir. I wouldn't be at all surprised it's on what is called the back list so that people can buy additional copies of older editions. So I wouldn't be at all surprised that they are still selling. Q. Do you receive royalties still for the old editions? A. Yes, sir. Q. I believe on direct you made a reference to Richard Dawkins in a statement that he made in The Blind Watchmaker, "Darwin made it possible to become an intellectually fulfilled atheist." Are you familiar with that quote? A. I'm certainly familiar with that quote. Q. And who is Richard Dawkins? A. Richard Dawkins is an evolutionary biologist and a professor at Oxford University in England. Q. He's considered a prominent scientist? A. Yes, sir. Q. Is that claim that he made, the quote that I just read to you, is that a scientific claim? A. No, sir, it's not. Q. I understand that you were good friends with the late Steven J. Gould? A. Yes, sir. Steve and I were personal friends. We were both, I was briefly on the faculty at Harvard and I got to know Steve there. Q. And he was a paleontologist from Harvard? A. Yes. Steven was actually a professor of geology, and his specialty was paleontology. Q. Now, you have no difficulty believing that he would have made a comment such as, "Before Darwin we thought that a benevolent god had created us"? A. You're giving me a statement and asking would I have trouble believing he said that. It would help me to know if in fact I'm being given a hypothetical quote or if this is an actual quote from an actual article or book of Dr. Gould. Q. Well, I can represent to you it was from "Ever Since Darwin," but if you have a question you may want to refer to your deposition testimony at page 174. A. Okay. I noticed that my answer in the deposition was pretty much identical to the answer I gave you now, which is you asked me if I was familiar with it, and I read, and I'm reading from my deposition, "Answer: No, I'm not. Do you know where that quote comes from?" And then you said, "I don't know if it was quoted out of The Blind Watchman, I may have been incorrect. Are you aware that he's made any statements similar to that?" So again I'm still asking where that quote might have come from. Q. Okay, read the next answer. A. Sure. "I'm perfectly willing to believe that Gould might have said that, but I don't know the context." Q. Today are you perfectly willing to believe that Gould would have made that statement? A. Would have and might have are actually different constructions, and what I will tell you is that I'm willing to believe that Gould might have made that statement, but I reiterate my quest to know the context for it. Q. Is that statement a scientific statement? A. No, I don't think so. I think it's an observation of -- it's an observation about history, and it's really a comment about society and popular imagination. It's certainly not a scientific statement. Q. Do you know who the late George Gaylord Simpson was? A. Yes, sir, I do. Q. And who was he? A. George Gaylord Simpson was a very well known paleontologist and evolutionary biologist and evolutionary theorist. Q. Now, I'll ask you do you think this quote that I'm about to state is something that you believe G.G. Simpson would have said, "Man is the result of a purposeless and materialistic process that did not have in mind he was not planned." A. Now, I will once again ask you for the context of that statement, and that would help me to understand if G.G. Simpson might have said that. Q. And again I represent to you it was from a book written called "The Meaning of Evolution." Again if you have a question I refer you to your deposition transcript at page 175. A. Okay. Thank you for telling where the quote comes from. I certainly am willing to believe the George Gaylord Simpson might have said that. You asked me would I prefer to say he certainly might have said that. Q. Is that a scientific claim? A. No, sir, it is not. Q. These three scientists that I just mentioned, Richard Dawkins, Steven J. Gould, and George Gaylord Simpson, are they considered prominent scientists? A. Two of them certainly were when they were alive, and Richard Dawkins certainly is. Q. In your direct testimony you gave a definition of intelligent design, and I want to make sure I'm clear on what your definition is, and I don't have exact recall from your direct testimony at this point. A. Neither do I, counselor. Q. But I can refer you to your answer in your deposition transcript, and I want to state what that answer is here and you can compare it on page 93 if you'd like to, and I want to see if that is the working definition that you are using for the purposes of this case. A. The page was 93? Q. 93. A. Okay. Q. Here's the definition, "Intelligent design is the proposition that the basic mechanism of evolution does not work and that the complexity of life, the changes that appear in living things and natural history, and the organization of living things are all best explained by the actions of an intelligent, creative force, acting outside, and you might say above, acting outside of the natural world, and that by definition that creative force lies outside of scientific explanation." A. I believe that you've certainly read properly from the deposition. I believe that in my direct testimony yesterday, having thought a few months more about how to summarize things briefly so as not to tax the patience of the court, I used a more succinct definition, and I think the definition I used is intelligent design is the proposition that some aspects of living things are too complex to have been evolved and therefore must have been produced by an outside creative intelligence force acting outside the laws of nature, and I would suspect, sir, that both definitions are in agreement with each other, even one is a little more verbose. Q. Isn't it true that you believe that there's a danger with attributing natural phenomena to supernatural causes, and that danger is that science will stop seeking natural explanations? A. I'm not sure if I would put it in exactly those terms. I do think that the proposition that every unsolved problem in the natural world should be attributed to causes and forces which layout side the purview of science, outside the natural world, into what I would call the supernatural world, is a science stopper, and what I mean by that is that once one says the only way we can explain this or that or the other is by the actions of a creator or a designer working outside of nature there's no point to do any more research on these problems, and that's why I would characterize it as a science stopper. Q. And to make this point in your deposition you used the example of the force that powers the sun which, according to your testimony, at one time was considered a supernatural phenomena. Is that accurate? A. It may be an accurate reflection of the deposition, which I have not reread on that point, but the way I would phrase it if you asked me a similar question today is simply to point out -- Q. Sir, I asked you a question. A. Yes. Q. And if you want to refer to your deposition testimony at 229, that might help you answer that question. A. Sure, I appreciate that. Oh, well, now that I see the deposition my answer is no, I did not say that. Q. Look at page 228 sir. A. Uh-huh. Q. You'll read from line 4 where it begins with "in other words"? A. Yes. Q. Do you see that on line 4? A. Yes, I do. Q. Then read until line 3 of page 229. A. Sure. I'd be glad to. "In other words, they are advocating supernatural progressive creation as the default explanation for anything that cannot currently be explained by science, and I'll give you an example, because I think this is an important to make. If we were having a discussion in 1880 and we were talking about what is the force that powers the sun, where does sunlight, heat, warmth, and so forth from the sun come from, we can take the science at the time and we could rule out the notion that the sun was a big ball of flame made up of burning oil or burning wood or burning wax or any other known chemical reaction in 1880, and we could do that, because we could calculate the amount of energy the sun puts out, we could calculate over many years the fact that the sun's diameter, if it's decreasing it's decreasing only very slightly, and if the sun was made of any fuel that powered a known chemical reaction, it's diameter should be increasing much more quickly. "Therefore in 1880 we could rule out the possibility," okay, I think I may have said a few things in this deposition that make no sense, "Therefore in 1880," oh, sorry, no, I didn't. "Therefore, in 1880 could we rule out the possibility that the sun's actions were due to some sort of divine intervention, the answer is absolutely no, we could not rule that out." Now, I'm sure the court reporter can correct my recollection of your question, but I think your question was did you state that in the 19th century the actions of the sun were attributed to divine intervention, and of course what I just read to you didn't say that. It said we couldn't rule out the possibility. That's not the same thing as saying they were attributed, and that's why I said no, sir, I did not say that in my deposition. Q. Read on from page 229, from lines 4 through 16. A. Gladly. "As you know, 25 years later there was a scientific explanation put forward for the power of the sun, and that turns out to be thermonuclear fusion, a force unsuspected by nature," and a strange way to put it. "So if at the time in 1880 science had simply thrown up its hands and said the explanation lies outside of nature, science would have stopped and we never would have done the investigatory work that was actually necessary to understand where the sun's power actually came from." Q. Keep reading, sir. A. Oh, sorry. "That's the danger of attributing natural phenomena to supernatural causes, or for that matter to design, which is essentially a call to say let's stop seeking natural explanations." Go on or -- Q. I believe that covers the point. A. Okay. Q. You make that point in your deposition that by attributing something that you might not have an explanation for at the time to a supernatural cause, then we just may throw up our hands and then science will never have an explanation for these natural phenomena, is that correct? A. That's exactly the point that I made there, yes, sir. Q. And you used the example of the force that powers the sun to demonstrate that if science had just thrown up their hands, then we would have never come up with this notion of thermonuclear fusion. A. Yes, that's correct, sir. Q. But you also said thermonuclear fusion was a force that was unsuspected at the time by nature. A. And as I read that I also said that's a very strange way to put it. I'm sure the court will understand the deposition went on for nine and one half hours, and I may once or twice have said something that doesn't quite make sense, and what I should have said in that exact context was a force that was unsuspected in nature, not by nature. Q. So there could be a force that was unsuspected in nature at a time, through further scientific development may actually be a natural explanation such as thermonuclear fusion? A. That's correct. Q. And the fact back in 1880 that we didn't know about thermonuclear fusion didn't mean that science stopped? A. It certainly did not mean that science stopped precisely because physicists around the world sought a natural explanation for the phenomenon rather than attributing to it a force outside of nature and beyond scientific investigation. Q. So, sir, is your testimony and your opinions regarding intelligent design, is it based on your understanding that intelligent design does require the ruling out of all natural causes for design? A. I'm sorry, not to parse these questions, because they're very carefully worded, and so I want to think about them carefully -- I'm sorry, could you repeat the question? Q. Is your testimony and your opinions based on your understanding of intelligent design is that intelligent design rules out all natural explanations for design? A. The question you just asked is does intelligent design rule out all natural explanations? Well, the answer is of course not. What intelligent design presupposes, and I'll repeat the definition is that intelligent design argues that some aspects of living things are too complex to have been produced by evolution and therefore they must be the product of creative action by a designer acting outside of nature. Q. So the design would have to be, in your understanding of intelligent design the design would have to be caused by a supernatural causation and no natural cause can be an explanation for design? A. No, sir, I would disagree with that. You say no natural cause can be an explanation for design. I would point out that the snow flake, one of the most beautiful and intricately designed if you wish to say objects in the world, that any person who didn't know snow or understand snow would say it had a beautiful design to it, but I think any chemist, any physical chemist will tell you that the structure of a snow flake is due entirely to natural causes such as the interactions of water molecules through laws of chemistry and physics. So I think you're lumping together certain propositions in what you're asking me to stay, and again I think I have clearly stated that my testimony is based on the definition that I understand of intelligent design as given in "Pandas and People," as explained by Dr. Behe, as explained by William Dembski, as explained by "The Discovery Institute, which is that some feature of living things are too complex to have been produced by evolution, and that means that they must have been the product of creative work by a natural, by an intelligent designer acting outside the laws of nature and beyond investigation. Snow flakes have what most of us would call a design, and they are the products of natural law. Q. With regard to the theory of intelligent design, sir, not snow flakes, the theory of intelligent design, is it your testimony that it requires a supernatural intervention? A. My testimony is that -- Q. Sir, I'm asking you a question. A. And I'm trying to answer that question fully and completely, sir. Q. It's a yes or no question. Is it your understanding of the theory of intelligent design that it requires the action of a supernatural power? A. Okay. Again, intelligent design as I understand it presupposes that some features of living things are too complex to have been produced by evolution and therefore, and here's the answer to your question, they must be the product of an intelligent designer acting outside of nature, exercising a creative force to create the design. Q. And in that answer then your view of intelligent design means that it requires the action of a super, it requires supernatural action? A. Perhaps it would be useful in giving a direct answer to your question, which I'm trying very hard to do, to define what supernatural means. The word super means above. The word natural of course means natural. The actions of an intelligent designer, as they have been explained to me by the advocate of intelligent design, is the identity, the means of action, and even the time of action of that designer lies outside of scientific investigation. That means to me that it lies above, super, natural law, supernatural, and therefore that designer is supernatural in the ordinary understanding that actions that occur on nature, that occur from a force which is not natural, from a place which is outside of nature, and are not subject to investigation, must be supernatural. To help me frame my questions, because obviously you don't think I'm being entirely responsive to your questions, and I want very much to be responsive to them, perhaps you could explain to me how an intelligence designer could act undetectably, outside of nature, to create order that evolution and natural law cannot, and not be supernatural. Q. That's your definition and your straw that you're creating on this definition. Here's my question for you with regards to what is considered supernatural. Do you know who Francis Crick is? A. Yes, sir, I do know who Francis Crick is. Q. And who is he? A. Francis Crick is a British physicist and crystallographer who, together with James Watson and Rosalyn Franklin, is the co-discoverer of the double helical structure of DN A. Q. And he received the Nobel prize? A. Yes, I believe that he and Watson and Wilkins received the Nobel prize for biology or medicine in 1963. Q. Now, he advanced a theory called directed panspermia, correct? A. He wrote a book in which he suggested that the first appearance on life on earth might have been the result of the actions of beings from another planet, scattering life into our world, that's correct. Q. And that was a hypothesis put forward by a Nobel laureate? A. That's correct, sir. Q. Is that a scientific claim? A. Well, the specifics that Dr. Crick made is a scientific claim, because although it's not immediately a testable claim, it is a potentially testable claim in terms of if we are able to explore larger and larger fractions of the known universe, we may eventually find out if there is life in other places that could have been directed towards us. So it's a scientific claim in the sense that it's potentially testable. Q. Is it a supernatural claim? A. That's an interesting point, and in this particular case no, I would not regard that as a supernatural claim. Q. So the fact that life forms may have come from an intelligent being from another planet to this earth as I believe you have described, directed panspermia, that is not a supernatural explanation for a natural phenomenon? A. It certainly is a farfetched claim in that many scientists would point out that there's no evidence for it, but as Crick framed it, it certainly would be a claim as I said that is potentially testable and therefore would accord to natural law. Q. Are you familiar with a program that NASA has for, and I believe its acronym is SETI, Search for Extra Terrestrial Intelligence? A. I'm familiar with it only as a lay observer who reads the papers and has heard about it. Q. From what you have heard about it, is that a scientific exploration? A. Certainly my understanding of how the work in SETI is being conducted is that it follows the scientific methods of explanation. Q. Are they seeking a supernatural explanation? A. No, sir, I don't think they are. I think that SETI is seeking evidence of life on other planets, other places in the universe. (Brief pause.) Q. Would you agree with this proposition that because presently we may not have a plausible natural explanation is not the same thing as saying that we've ruled out all natural explanations? A. Yes. Q. And the example of the power, the forces that power the sun would potentially be an example that fit that claim? A. Yes, sir, I believe it would. Q. Sir, intelligent design doesn't require adherence to the six day creation event described in the Book of Genesis, correct? A. I certainly think that there are formulations of intelligent design that don't require adherence to a six-day creation event described in Genesis, that is correct. Q. Intelligent design is not sectarian? A. Can you help me, sir, by explaining what you mean by non-sectarian? Q. Doesn't adhere to any particular religious dogma. A. I believe that intelligent design does adhere to one particular religious dogma, and that is that life on earth can be attributed to the outside actions a designer whose actions are outside and above nature. Q. Well, you need not be a fundamentalist Christian to be a proponent of intelligent design, correct? A. I certainly think that one need not adhere to a particular religious point of view, but as intelligent design has been explained to me as it's described in "Pandas and People" and in the writings of the members of The Discovery Institute whom I've read and whom I regard as authoritative spokesmen for intelligent design, the common thread of intelligent design is attribution of the complex features of living organisms to the creative force of a being acting outside of nature, and that is definitely a theistic point of view. Q. Again, sir, my question is you need not be a fundamentalist Christian to be a proponent of intelligent design? A. That certainly is true. Q. Dr. Behe for example has the same religion as you, correct? A. That's my understanding. Q. And Dr. Behe, an intelligent design proponent, does not adhere to the literal reading of Genesis? Is that your understanding? A. Actually I have never discussed Dr. Behe's view of Genesis with him, so I'm not sure. Q. Dr. Behe doesn't dispute the information from geology that the earth is very old, correct? A. If I remember what -- and if I get this slightly wrong I'm sure you'll refresh my memory, I believe that Dr. Behe wrote in "Darwin's Black Box" that he has no particular reason to quarrel with the standard geological interpretation of the earth's history. Is that a fair phrasing, sir? Q. Well, my question is to you, sir. A. Well, my understanding then is the indirect quotation which I believe comes from "Darwin's Black Box" that he says he has no reason to argue or to quarrel with it. Now, to my standard of endorsement that's not a ringing endorsement, and it certainly, it certainly doesn't amount to an affirmative answer to your question. Q. Sir, young earth creationists are completely unequivocal that the earth has to be between six to ten thousand years old, correct? A. Most of the young earth creationists I have encountered have argued that the earth is less than ten thousand years old, that's correct, sir. Q. And that's one of tenets of young earth creationism, correct? A. As I understand them, sir, yes, that's correct. Q. Dr. Behe, again an intelligent design proponent, does not adhere to the flood geology point of view advanced by creationists, is that correct? A. I'm not sure whether Dr. Behe adheres to that or not. I haven't heard him state definitively. I have only read in "Darwin's Black Box" that he has no problem with the standard geological chronology. Q. And from that statement would you infer that he then has no problem with the flood geology, or he has a problem with the flood geology based on that statement? A. You know, I suppose you could infer that, but you could also infer that like most biochemists he doesn't care too much about geology. Q. So that doesn't play into his scientific theories or arguments regarding intelligent design? A. I have not seen Dr. Behe make an argument based on the geological ages in any of his writings or books, one way or another. And therefore I do not wish to presume what his view is of the young earth chronology, and I'm sure that if you bring him to the stand he'll be able to tell you himself. Q. In terms of the arguments he's advancing he does not refer to the geological record? A. That is correct, he does not refer to it, and as I said perhaps that's because like most biochemists he just doesn't read geology. Q. And so for his arguments it's not necessary that the earth be six to ten thousand years old? A. The arguments that Dr. Behe makes based on the actions of an intelligent designer, to assemble the complex structures within a cell would be consistent with young earth creationism or with special creationism spread over the billions of years of the geological ages. It would be consistent with either one. Q. Again, sir, my question was does he rely on the age of the earth being six to ten thousand years old to make a scientific argument? A. No, sir, he does not rely on it, and that's why it would be consistent with either one. Q. So it's not a necessary component of his scientific arguments? A. That's right, and that's why it would be consistent with either one. Q. Do you know what Barry Palovitz is? A. Yes, I think Barry is a plant geneticist or a plant physiologist at the University of Georgia. Q. And he wrote an article which made reference to your book "Finding Darwin's God" that we discussed during your deposition? Do you remember that? A. I do remember he wrote a review, and I will tell you that I try not to take reviews of a book too seriously. Q. But do you recall that in the review he claims that one of ideas that you entertained in your book "Finding Darwin's God," which is the notion that the universe may have purpose, was also an idea that was embraced by what he called neocreationism? A. I actually don't specifically remember Dr. Palovitz's review except to note that he didn't like my book much, and I believe he may have made comments like that. So I'm perfectly willing to believe that that's exactly what he said. Q. If your look at your deposition, sir, on page 128? A. Got it. Q. If you could read, if you look at line 15, and after the sentence, "He calls it a pet rock," and it begins with "saying," could you read that sentence? A. Sure. This I believe is a quotation from the Palovitz review. Q. No, this is your answer, sir. A. I'm sorry, which page and which line again? Q. Page 128, line 15, starting with the word "saying"? A. Okay, yes. This is my answer. I'm sorry, I was on the wrong page. "Saying the two schools of thought embrace a single idea does not mean that those two schools of thought are exactly the same thing." Q. Is that a truthful statement that you made? A. Yes, sir, of course. Q. Sir, now, it's fair to say that one of the central arguments of intelligent design is that the evolutionary mechanisms are not sufficient to explain the origin of complex biological structures like the flagellum? A. That's correct, sir. Q. Now, you have already testified that you wrote a book called "Finding Darwin's God." A. Several times. Q. And in that book you said, "If Darwinism cannot explain the interlocking complexity of biochemistry, then it is doomed." Do you recall making that statement? A. I probably wrote something like that in the book, yes, sir. Q. And you also quoted from Darwin in that book, who acknowledged, "If it could be demonstrated that any complex organ existed which could not possibly have been formed by numerous successive slight modifications, my theory would absolutely break down." Correct? A. That is correct, although it's a partial quotation, because the next sentence is, "But I can find no such case." Q. Correct. And he wrote, and that was from "On the Origins," correct? A. Yes, sir, that's a quotation, I gave a more complete quotation, but that's from "The Origin of the Species." Q. And that was written in 18 when? A. I believe, sir, 1859. Q. I believe you already previously testified that the claim that the bacterial flagellum is irreducibly complex is a scientific claim? A. It is a, that is a scientific claim if irreducible complexity is precisely defined, and because Dr. Behe in "Darwin's Black Box" gave a very precise definition that made the claim of irreducible complexity a scientific claim, yes, sir. Q. And if irreducible complexity could be demonstrated, that would present an argument against Darwin's theory of evolution, correct? A. If irreducible complexity could be demonstrated in the exact way that Dr. Behe describes, it would present an argument, not a disproof, but an argument, because other scientists have argued that even if one finds truly irreducible complex structures, that does not rule out in principle an evolutionary pathway to them. Q. Does it open a question? A. Of course. It is phrased in the form of a question, and yep, it's a question. Q. Now, we're referring to Richard Dawkins, and he made a statement, "Biology is the study of complicated things that give the appearance of having been designed for a purpose." Are you familiar with that quote? A. Yes, I am familiar with that quote. Q. Do you agree with it? A. I wouldn't put it the same way that Dawkins did. I think biology is the study of a great deal more. I think Dawkins was using hyperbole, a figure of speech, exaggeration for the purpose of emphasis to make a very good point, and that is a first glance at many living organ systems, organisms, compounds, makes it look as though they have such a strong correlation of structure with function that in the human world we would say that they were designed, and that's the metaphorical point that I think Dawkins made, and I agree with that metaphorical point. Q. And is that similar to the points which you described as a metaphor in your cross examination testimony yesterday about the cell being a collection of protein machines? A. Yes. In that case it was a different metaphor by Dr. Bruce Albertson, and I think it's essentially the same point. Q. Is part of the nature of the controversy that we're discussing in the course of this case is whether the design referred to by Dawkins is the apparent design that he describes or real design that intelligent design proponents advocate? A. Well, to answer that question, sir, we're going to have to break down what we mean by the word design, and the word design is often used in biochemisty and protein structure to simply refer to in shorthand the correlation of structure and function. So for example if you remember I put a slide up on the screen yesterday showing the hemoglobin molecule, the oxygen carrying protein, the inner pocket of that hemoglobin is what physical chemists call hydrophobic, or water hating. It's kind of oily in ordinary terms. That makes it an ideal binding site for an oxygen atom to slip in. The outside of the molecule is strongly hydrophilic. That means it's got a lot of charges on it, and if you will it makes it easy for it to dissolve in water. So a physical biochemist might look at the structure of the molecule and say let's talk about the design of the molecule, it is designed to be soluble in the solution of the blood, and it is designed to have four pockets in which you can tuck an oxygen atom to carry them to the tissue. What he really means by design is the exquisite correlation of the structure of that protein with its oxygen carrying function. So in that respect that design is similar. Q. I'm going to give you a definition of irreducible complexity, which I believe is slightly different than the one that you used in "Darwin's Black Box" and I want to ask you if you will accept this definition, " A single system which is necessarily composed of several well matched interacting parts that contribute to the basic function, and where the removal of any one of the parts causes the system to effectively cease functioning." A. I wouldn't agree with that, because that's actually not a complete definition of irreducible complexity. If I remember, the quote that I showed was pretty similar to that, except it went on basically to refine the definition, make it more precise, make it scientifically testable, and that was that one cannot produce an irreducibly complex machine by numerous successive slight modifications of a precursor system because any precursor to an irreducibly complex system that is missing a part is by definition nonfunctional, and I regard that as an essential element of the argument, of the term irreducible complexity, because without it irreducible complexity does not make a strong argument against evolution. Q. In your explanation, or I guess reputation of the concept of irreducible complexity, is it true that you argue or you define it so that if a component were removed, the question is whether or not that component itself could still have an independent function? A. I believe what I said was a little more complete than that, and that is rather than a component could be removed, a set of parts or components could be identified within the larger structure which had an independent function of its own, because the central argument that comes from the concept of irreducible complexity is that there are no stepping stones on the way to the evolution of a complex structure. In other words, they have to be fully assembled to have any function, and therefore if one can demonstrate that partial assemblies of the components in fact do have a selectable function, then the argument falls apart. And it does in every case that we examined, in every case we talked about yesterday I should say. Q. So is it that a component of the part can have an independent function as opposed to the essential function, that it ceases function, the essential function of the main organism? A. I'm going to ask you to repeat the question, because the question began "is it," and I'm not sure what "it" is. Q. Let's break it apart then. A. Okay. Q. Is your argument against irreducible complexity because if you remove a component from a system, that that component or a series of components may itself have an independent function, and therefore the system itself is not irreducibly complex, is that your understanding? A. That certainly is my understanding, and again I would try to put it more completely, and that is that once a collection of parts is claimed to be irreducibly complex, the way in which one analyzes that claim is to see if there's any subset within this larger collection of parts that could have an independent function, and once you identify that you suddenly discover that structure is no longer irreducibly complex. Q. And that can be any of the components of the system? A. I would certainly think so, sir. In fact, I think a direct prediction of the argument made from irreducible complexity is that no components of the system should have independent functions. So once you find one, the argument is finished. Q. Sir, is it not a standard scientific practice for scientists, and I'll use an example of Dr. Behe, and perhaps you might fit into this example as well, to point to the scientific literature, to point to observations and experiments that have been done by other people and other laboratories, have been peer reviewed, have been published, and to cite to that evidence, cite to those data, and cite to those experiments in their arguments? A. Of course it is. Q. And so the question then is not whether Dr. Behe or any other scientist has done experiments in their own laboratory that have produced evidence for a particular claim. The question is whether or not the inferences that they draw in their analysis from that data are supported. Is that true? A. Yes, sir, I certainly think that that is true, and I agree with it, and the point that I would wish to make is that in my testimony yesterday I said that as far as I knew Dr. Behe had never done any work that directly implicated intelligent design. He certainly has written a number of papers and made a number of arguments designed to support the inference of irreducible complexity. Q. So there are natural phenomena that cannot be fully explained by materialistic observations, correct? A. There are natural phenomena -- Q. I can give you some examples. A. Please do. That would help a great deal. Q. The origin of life. A. Oh, okay. The answer to your question, sir, is no. And the reason for that is that the question was phrased is there are natural phenomena that cannot be explained, and the reason I said no to your question, I do not agree with that, is I would agree to a question that says there are natural phenomena that have not yet been explained by material or natural causes, and if you then said the origin of life is such a question which has not yet been explained, I would have said yes, sir, that is correct. Q. I believe my question, sir, was there are natural phenomena that cannot be fully explained by materialistic observation. A. And again I would still say no, because I hear "cannot be explained" or "cannot fully be explained" to be a claim that they will never be explained, that it's a problem that will never be solved because of some reason and principle, and all that I'm trying to do is to make sure that my answer is phrased in such a way in which it is clear that I, like most scientists, realize that science is filled with unsolved problems. The origin of life I'm quick to say is one of those problems. We do not yet have a complete natural explanation of that particular question. Q. Sir, if you'd turn to your deposition, page 210? A. Sure. Q. And reading from line 7, and to complete the answer for completeness read through to line 19? A. Sure. "Are there natural phenomena that cannot be fully explained by materialistic observations? The answer is yes. You chose the origin of life. I would choose gravity, I would choose dark matter in the universe, and I would use the way in which the vertebrate body is constructed during the development of an embryo, because all of these are questions which cannot be completely answered by science, and to paraphrase an answer I gave earlier in the day, when we have complete explanations for all natural phenomena, people like me, research scientists, will be out of business, because science will be finished. We will have explained everything." Q. Is that a correct answer? A. It is a correct answer, but in order to complete the record for the court, may I read from my deposition a few lines further down, just a sentence or two? It's on page 211, and I'd like to start on line 4 if I may, sir. Q. Was that a complete answer that you gave to the question that I had asked you during the deposition? A. Sir, I just asked you. May I complete -- Q. Was that a complete -- A. Okay, fair enough. That was the complete answer I gave then. Q. Thank you. A. And I note for the record that in my deposition I clarified that -- Q. Thank you, sir. A. -- the same way I've been doing here. THE COURT: Wait, wait. Let him finish his answer. Finish your answer. THE WITNESS: Thank you, Your Honor. THE COURT: But that is not necessarily a license to go further than what the question was, but if you want to finish that particular answer that you gave, you may do so. THE WITNESS: Okay, at the bottom of page 210 I was then asked, and this is the question, "And just to clarify, there has not been, at least I'll put it in terms of your satisfaction, a successful materialistic explanation for the origin of life? Answer: I would expand on that a little bit if you'll allow me to, and the answer, I'm sorry, the answer to that is yes. I regard the origin of life, as I think most scientists do, as an unsolved biological problem. "Now, to say that the problem is unsolved does not say it's a problem about which we know nothing. In fact, we know a great deal, and we know for example that conditions similar to those might have existed on the primitive earth to allow the formation of, the undirected formation of very, very simple building blocks of compounds such as proteins and nucleic acids." That's all I wanted to read. Thank you, Your Honor. Q. Are those still scientific questions? A. By "those" you mean what is the origin of life, what's the nature of gravity, how is the vertebrate body put together? Yes, sir, those are all scientific questions. Q. Sir, critical thinking is a legitimate pedagogical goal, correct? A. It's a legitimate and I would argue an essential pedagogical goal. Q. And an important component of teaching science? A. I think it's a very important component of teaching science. Q. Do you agree that the purpose of high school science courses should not be to train scientists but to contribute to the liberal education of students? A. I think that -- I agree with you, because I think contributing to the liberal education of students is a great way to train scientists. Q. If a student believes that Darwin's theory of evolution was a fact, would that be a misconception? A. It would certainly be a serious misconception as to the nature of the theory, because theories never become facts. If a student believed that atomic theory was atomic fact, that would be a misconception. Atomic theory is based on factual observations in the same way that evolutionary theory is based on factual observations. Q. Is your answer to my question yes, sir? A. The answer to the question is most definitely yes. Q. If a student believed that science has answered all questions regarding evolution, would that be a misconception? A. It would be a terrible misconception, sir. Q. If a student believed that science has solved the origin of life question, would that be a misconception? A. It would be a terrible misconception. Q. You teach a biology course at Brown University, Biology 20, correct? A. I believe I do, that's correct. Q. And that's an introductory course? A. Yes, sir. Q. And I believe it's for concentrators and non-concentrators? Is that the term you use at Brown? A. Yes, that is the term we use, and for the benefit of the court that means that students who are going to major in science, students who might be pre-med in their studies, or students who are thinking of going into some other field entirely will still take that course. Q. Now, your description of the course, and I believe it's in the 2005 syllabus, you state, "In the same way that students of the sciences could not consider themselves fully educated without a knowledge of art, social theory, and literature, students in the humanities and social sciences should approach courses in the sciences as part of their overall educational experience." Is that an accurate statement? A. Yes, sir, it is. Q. And in the syllabus you also state, "The intention of this course," meaning the Biology 20 course, "is to establish links between biology and other disciplines and to briefly explore some of the ways in which science is related to popular culture." Is that true of your course? A. Yes, sir, it is true of my course, one of my goals. Q. Now, in your biology course you provide supplemental materials for when you give lectures on evolution, is that correct? A. When I teach the course I provide internet links of all sorts that will help students research questions in a variety of ways. Q. And some of those internet links are to your web site with some of those articles, "The Flagellum Unspun," the biochemical, I believe there's one about the biochemical challenge to evolution? A. I actually don't think that I, and I'm sure you'll refresh my memory if I'm wrong, I don't think I provided a direct link to those particular essays. I did provide a direct link to a web page that I have, "On Matters Evolution," and on that page there was then links to some articles that I had written about evolution, including the two that you mentioned. Q. And those were articles regarding intelligent design? A. Yes, sir, I believe they are articles critical of intelligent design, that's correct. Q. And there was also a PBS film clip called "Why is Evolution Controversial?" that you list as supplemental material? A. Yes. That one I think I did link directly from the web page in my course. Q. And these supplemental materials allow students to explore supplemental information related to the lecture topic? A. That's certainly my intent. Q. And in this case it would be the lecture topic of evolution? A. That's right. Students of course always want to know is it going to be on the test, and supplemental materials are not on the test. They're out there in case they get interested in something. Q. And is it true you believe that these materials promote the goal of giving students an opportunity to explore other aspects of evolution and evolutionary theory? A. The best way to answer your question is that I started doing this simply because so many students would say, I talk about RNA, could you give us some links to some other things in case we get interested here and there, and the links I put up on evolution fall into that general category of anticipating student questions. Q. Does it also give them a better understanding of the way in which evolution is regarded in the larger society? A. I hope so. Q. If you look in your deposition, page 78, please? A. Okay. Q. And the question I asked you beginning on line 22 was, "What goal does that promote?" And that's referring to your previous answer, "The way in which evolution is regarded in the larger society" for example was your answer, and then my question was, "What goal does that promote?" And then could you read us your answer starting at line 23 on page 78, continuing through line 7 on page 79? A. Sure. Gladly. "I think I've already answered the question, which is to give students an opportunity to explore the implications of some of the material that we cover in lecture and, you know, the generalization that I would apply to any education is, the goal is not to define a set of material to be mastered, but to open a door. And this is one way to open the door and say if you want to walk through that door, take a look, there it is." Q. Is that a truthful answer? A. Oh, of course, it's a truthful answer, sir. Q. I just want to be accurate that that web page on evolution you had at Brown University included the article "The Flagellum Unspun," correct? A. Yes, sir, I believe it did. Q. And the other article, I believe I misspoke, I believe the title of it is "Answering the Biochemical Argument from Design," is that correct? A. Sounds right, yep. Q. Now, your biology course consists of approximately 38 to 40 lectures, is that correct? A. In some years a couple here, but that's in the neighborhood. We have a few exams as well. Q. I believe you testified in your deposition approximately three out of those 38 to 40 lectures are specifically dedicated to evolution? A. I think that's about right, yes. About 10 percent. Q. I think we already established you're the co-author of "Biology" by Prentice Hall, and your co-author is Joseph Levine, is that correct? A. That's correct, sir. Q. And it's your understanding that the Dover Area School District selected and purchased your 2004 edition of "biology" to be used as their textbook for the ninth grade biology crass? A. That's my understanding, too. Q. And you consider that to be a ringing endorsement of your book I believe is the term you used in your deposition, correct? A. Did I? Q. If you'd like to look, page 21 and 22. A. Sure. Q. Line 24, starting on page -- A. Sorry, the clip is in the way. Yes, okay. I'll just rephrase it so I can explain the context to the court. "Question: I'm assuming you don't have any objections with the school board making that decision," which was to pick out book. Answer, my answer, "No, I was quite pleased. I considered it to be a ringing endorsement of our book," and I have to say that when I said that I was engaging in a bit of flip hyperbole, exaggeration for just the purpose of emphasis. I was very pleased. Q. You think that was a good choice? A. A good choice by to engage in flip hyperbole or for the Dover board of education? Q. Probably the latter. A. Okay. Yes, I think it was a good choice. Joe and I worked very hard on this book. We think we've written the best possible book. We regard our mission as to turn students on to science, and we think our book does that and we're very happy that the Dover board selected it for the students. Q. Does your textbook provide comprehensive coverage of the theory of evolution? A. Yes, sir, I believe it does. Q. And you write your textbooks to comport with the academic standards for each of the states, correct? A. Yes, sir, we do. The textbook used in Dover is a national edition, but we routinely consult the science education standards in the various states, including Pennsylvania, to make sure they fit those standards. Q. Is it your understanding that your biology book, the 2004 version, comports with the Pennsylvania state academic standards? A. Yes, sir, I believe it does. Q. In your opinion does your textbook represent science in a manner that comports with good science pedagogue? A. Yes, sir, I believe it does. Q. And it presents science in a way that is proper for a ninth grade biology student? A. Yes, I think that. Q. Now, this book, the biology book, includes a section entitled "Strengths and Weaknesses of the Evolutionary Theory," correct? A. Yes, it does include such a section. Q. And this section has not appeared in your prior versions of the biology book, is that correct? A. You know, the answer to that is -- not appeared in previous version. Not exactly. It's not exactly a yes or no. That particular heading is new, but some of the statements made under it do appear in earlier printings of the book. But certainly the section exactly as it appears in 2004 I do agree did not appear in the 2003 or the 2002 copyright. Q. Did you have prior sections that were set out strengths and weaknesses that were under the section on evolution? A. We certainly did describe the strengths and weaknesses of evolutionary theory, but we had not placed them under a heading so they couldn't be missed. Q. So this was the first time it was placed under that sort of a heading? A. That is correct, sir. Q. If you can turn to page 386 in the biology book, and that's Exhibit 214, defendant's exhibit, could you read the paragraph that begins with "like," the second full paragraph? A. Sure, I'd be glad to. "Like any scientific theory, evolutionary theory continues to change as new data are gathered and new ways of thinking arise. As we shall see shortly, researchers still debate such important questions as precisely how new species arise and why species become extinct. There is also uncertainty about how life began." Q. And the caption of that where that section falls is Strengths and Weaknesses of Evolutionary Theory," correct? A. It's actually a heading, but yeah, that's correct. Q. And that statement, that paragraph that you just read, is that an accurate statement? A. I certainly hope so. I believed it when Joe and I wrote it. Q. Now, that section, that heading, "Strengths and Weaknesses of Evolutionary Theory" was added to your book because of the state requirements of the state of Texas, correct? A. Yes, sir, it was. Q. And those standards required students to analyze and critique specific scientific theories? A. The curriculum guidelines in the state of Texas, which are known as the TEKS, which stands for Texas Essential Knowledge and Skills, have very specific wording in fifteen or twenty different curricular areas, and when we prepared our book for the Texas adoption we thought it best to use the exact wording that was used in the Texas standard in a variety of places so it couldn't be missed that we were conforming to Texas standard, and this is one of those places, that is correct. Q. Now, is it true when you submitted your textbook to the state of Texas it was clear that there was only one scientific theory that any member of the state board of education was interested in, and that was the theory of evolution? A. No, sir, it was not clear. Would you like me to explain why I gave -- Q. I want you to go to your deposition, sir, page 285 and 286. A. Okay. Q. And if you start, the question begins on line 24 of page 285. If you could read that through your answer of page 286, line 19. A. Sorry, you want me to start on 285? Q. 285, line 24 is where the question begins. A. Sure. "Question: What was the purpose for putting that in the 2004 version?" Answer -- Q. I'm sorry, let me -- I'm sorry to interrupt you, but that is that heading, that section that we were just -- A. Yes, correct. Q. Continue with your answer, I'm sorry. A. "The purpose for putting that in the 2004 version was the state requirements for the state of Texas specifically required students to analyze and critique the strengths of scientific theories and hypotheses. Now, that standard, which is known as TEKS 3- A in Texas, applied to scientific theories in general, but as we submitted our textbook to the state of Texas it was clear that there was only one scientific theory or hypothesis that any member of the state board of education was interested in, that was interested in seeing strengths and weaknesses for, and that one theory was the theory of evolution." Now, the reason, sir, I said no to your question was, and I'm sure the court reporter can correct me if I got this wrong is because your question was, was that the only theory that any member of the state board was interested in, and the reason I said no is because many members of the state board were interested in many other aspect of the book. The deposition statement was it was the only theory that anyone was interested in seeing strengths and weaknesses for, and that's what I said in my deposition. So my no answer is based on very carefully listening to your question and trying to say that no, I don't want to slur the entire board of education of the great state of Texas by saying that's the only theory they were interested in. It is true that that's the only theory that they wanted to hear strengths and weaknesses for. I hope that clarifies my answer in the court vis-a-vis the deposition. Q. And so in that regard your deposition answer that you read is a correct answer? A. My answer in court was correct, sir, based on your question, and my answer in the deposition was correct based on the question, which was different, that you asked me at the deposition. Q. Sir, when you write your textbooks, and this is I guess a general post to textbook writing, is it true that when you use qualifying language such as "some biologists propose" that that is a way of conveying sort of a sense in the community that there might be a tentative nature or disagreement about the proposition? A. I'd want to see the particular context you have in mind, but in general I think that's a fair statement. Q. Sir, in the ordinary meaning of the word a creationist is simply any person who believes in an act of creation, correct? A. Yes, I think I would also regard that as the ordinary meaning of the word creationist. Q. And you believe that the universe was created by God? A. I believe that God is the author of all things seen and unseen. So the answer to that, sir, is yes. Q. In a sense that would make you a creationist using the definition -- A. In the, as I think you and I discussed during the deposition, in that sense any person who is a theist, any person who accepts a supreme being, is a creationist in the ordinary meaning of the word because they believe in some sort of a creation event. Q. And that would include yourself? A. That would certainly include me. Q. And you believe that God coined the laws of physics and chemistry? A. Well, I have to say that I'm not on the stand as you pointed out yourself, sir, as an expert witness in theology. I can certainly tell you what I believe. And that is as I said before, God is the author of all things seen and unseen, and that would certainly include the laws of physics and chemistry. Q. And you believe that evolution is a way in which God can bring about His divine plan in this universe? A. I certainly believe that evolution is a natural process that occurs in our universe, and as such it and all other natural processes fall in -- again I don't want to pretend to be a theologian, but I think it would fall under the purview of what a theologian would call divine providence. Q. But in terms of your personal beliefs you believe that that is consistent with God's overall plan the way evolution operates? A. I believe that God is the author of nature, and therefore I believe that things that happen in nature are consistent with God's overall plan, and evolution is a natural process. Q. And you see evolution as being consistent with your religious beliefs? A. Yes, sir, I do. Q. Sir, you believe that faith and reason are compatible? A. I believe not only that they are compatible, but they are complementary. Q. You agree that if we apply faith and reason correctly as objective and reliable tools for the nature of the world around us, ultimately the conclusions of both should be compatible? A. One would certainly hope is. If God exists, and both faith and reason are gifts from God, they should complement each other. Q. You agree then that the rational world of science can be included in faith world of religion, that the two are entirely compatible? A. Well, actually you phrased that question in sort of a contradictory way. You said, I think you said can one be included within the other, and then you said are they compatible. I'm not sure that neither faith or reason are included within each other. I do very much agree they are compatible. Q. If you look at your deposition, page 201? A. Yes, sir. Q. Beginning at the end you make reference to a document written by John Paul II, and I believe that was the encyclical Fides et Ratio, "Faith and Reason? A. Sir, this is on page 201? Q. If you read on to page 202, beginning of page 202. A. Okay. No wonder I couldn't find it. Yes. Oh, okay. In the deposition, I'm not sure if you want me to read it, but I can paraphrase it -- Q. I'd like you to read it -- A. Sure. I'll simply begin on page 202 if that's all right with you. Q. Yes. A. "Guiding the relationships between these is pretty well exemplified in that document written by John Paul II that I mentioned earlier called Fides et Ratio, which is to say that the rational world of science can be included in faith world of religion, and that the two are entirely compatible," and I have to say that I don't quite like with the way that I put it in the deposition, which is one of the reasons that I rephrased it, and, you know, in terms of including when one world is included in another it carries the implication that one is subordinate to the other, and I regard as I said in the second part of that is the two as compatible, consistent, and complementary. I don't regard one as included with the other, and therefore I don't actually quite agree with what I said in the deposition. I hope I haven't caused you any trouble. Q. So you don't ascribe to philosophical naturalism, correct? A. As I understand philosophical naturalism, it is a doctrine that says that the physical world is all there is, and the only way we have of learning anything about the nature of existence is the scientific way, and if that is what philosophical naturalism means, no, sir, I am not a philosophical naturalist. Q. Now, when you read the Book of Genesis, you take that to be a spiritually correct account of the origins of our species, correct? A. I take all of the Bible, including the Book of Job, the Book of Psalms, New Testament, and Genesis to be spiritually correct. Q. And you find repeatedly verses that say that God commanded the waters of the earth and the soil of the earth to bring forth life, and from an evolutionary point of view you believe that's exactly what happened? A. Well, I just don't find them. They're there. And the way in which I look at Genesis is that Genesis as I read it, and unfortunately I don't read Hebrew, my co-author does, and he's frequently discussed Genesis with me, but as I read English translations of Genesis I see a series of commands of the Creator to the earth and its waters to bring forth life and, you know, without requiring, my church certainly doesn't, without requiring Genesis to be a literal history, you know, that's pretty much what happens, which is that the earth and its waters and so forth brought forth life. Q. And that's consistent with evolutionary theory? A. In the broad figurative poetic sense it is consistent with natural history, which underlies evolutionary theory. (Brief pause.) Q. I believe you indicated in your direct testimony that you gave testimony down in Georgia in the Sellman vs. De Kalb County case? A. Yes, sir, I did. Q. May I approach the witness, Your Honor? THE COURT: Yes you may. Q. I'm handing you what's been marked as Defense Exhibit 211. A. Thank you, sir. Q. And you'll note from the label on the front cover it appears to be Exhibit 11 from your deposition. Do you recall seeing this in your deposition? A. Yes, I do recall seeing it in my deposition. Q. If you turn to page 138, please? A. Okay. Q. And starting at line 3 the question was asked, "When you were writing material on evolution, did you add any information on creationism? And then you answer begins at line 5. Would you please read your answer from line 5 down to line 24, please? A. Okay. "Answer: No, we did not, and the reason that once again is that there is no scientific evidence that supports the idea of creationism. Now, it's very important to define what one means by creationism. I'm a Roman Catholic for example, so I believe the universe was created, and you could always say that means you're a creationist. But in the modern usage of that language in the United States the word creationist means something quite different, other than a person who simply believes in a supreme being and thinks that there is meaning and order and purpose to the universe. "In the current usage in the United States creationist is taken to mean someone who thinks that the earth is six to ten thousand years old, that all living organisms were simultaneously created during a very brief period of time, perhaps six days, and that the entire geologic record is an illusion, a column of flood deposition from the single forty day flood that has been misinterpreted for 250 years by the geological sciences as a series, a system of geological ages." Q. When you gave that answer you were testifying under oath, sir? A. Yes, sir, I was testifying under oath. MR. MUISE: Your Honor, this might be a good time to take a break, I don't know, if the court is inclined to do so. I'm going to be moving into some new material, so it's sort of a natural break from my perspective. THE COURT: All right. Why don't we take our morning break at this time, and we'll as yesterday break for at least twenty minutes to give everybody an opportunity to do what they need to do. We'll return in twenty minutes. We'll be in recess. (Recess taken at 10:16 a.m. Trial proceedings resumed at 10:47 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 2 (September 27), AM Session, Part 2 THE COURT: Be seated, please. All right, we're back on the record, and Mr. Muise, we are continuing with cross examination. CONTINUED CROSS EXAMINATION BY MR. MUISE: Q. Thank you, Your Honor. Dr. Miller, the concept of complex specified information, that's a component of intelligent design theory? A. I suppose it is. I don't normally hear it when intelligent design theory is explained. I didn't see that exact term in "Pandas and People," I may have missed it, perhaps you pointed out to me, but I do know that there is a person who is generally regarded as part of the intelligent design community named William Dembski who has written about complex specified information, and I can't think of anyone else who has written about it other than Dr. Dembski. Q. When you testified on direct and you referred to the section on "Pandas" with the writing in the sand, John loves Mary? A. Yes, sir, I did. Q. Is it your understanding that that's the sort of concept that Dr. Dembski is trying to convey with the notion of complex specified information? A. Well, you know, I'm not entirely sure, and we could always ask Dr. Dembski, but it's entirely possible that that's what he refers to. Q. And you said this is a concept argued by Dr. William Dembski, is that correct? A. That's my understanding. Q. And he has a Ph.D. in mathematics? A. That's what I've been told. Q. And his ideas and concepts were published in a book called "The Design Inference," are you familiar with that? A. I've heard of the book. Q. Do you know that the book was published by Cambridge University Press? A. I have heard that, too. Q. Is Cambridge University Press an academic press? A. It is a press that I understand is owned by Cambridge University in England. Q. A prestigious university would you agree? A. Oh, absolutely, no question about that. Q. I may want to forewarn the court reporter I have some phyla questions coming up here. Dr. Miller, the octopus belongs to the phylum mollusca, M-O-L-L-U-S-C-A, is that correct? A. Yes, sir, I believe that's correct. Is this going to be a little bit of a biology quiz here, sir? Q. I think you'll be prepared for it. A. Okay, I'm ready to go. Q. It's not a pop quiz, put it that way. A. Okay. Q. The starfish belongs to the phylum -- A. Echinodermata. I can help you with these. Q. E-C-H-I-N-O-D-E-R-M-A-T-A? A. Right, and that is pronounced echinodermata. Q. And an insect belongs to the phylum anthropoda? A. No, sir, arthropoda. That's an R. Q. Sorry. A-R-T-H-R-O-P-O-D-A? A. That's correct. Q. And a fish, in the example we used a minnow, belongs to the phylum chordata? A. Chordata, that is correct. Q. C-H-O-R-D-A-T-A? A. That is correct. Q. It's true that there's no fossil evidence that show that these phyla share a common ancestor? A. Let me think about that just for a second. (Brief pause.) A. Within the last year a number of small bilateran fossils have indeed been discovered in fossil formations in China, and these -- by bilateran, B-I-L-A-T-E-R-A-N, we mean an organism has an axis of symmetry that goes right down the middle just like we do, and has parts of the body on both sides, hands on both sides, these small bilateran fossils exist in a time period preceding the Cambrian, and they may well turn out to be the ancestors of several of the phyla that you mentioned, and these would include arthropoda and chordata. It's a little more difficult to see how they could be the ancestors of echinodermata, which display radial, or five-fold symmetry. Q. If you could go to your deposition at page 267? A. Yes, sir. Q. In the question beginning on line 12, "Is there fossil evidence that shows that each share a common ancestor," and we're referring to those four phyla that I just asked you about, could you please read your answer? A. Sure, I'd be glad to. The question you asked, is there a fossil evidence that shows these share a common ancestor, the answer is that, "No, we don't have evidence yet of a common ancestor for these four different," I said phylum, but it should be phyla, "we do, however, have molecular evidence from organisms living today, As I mentioned several times, that all these organisms share a common molecular tool kit which is strong evidence on a molecular evidence, and many people would argue that molecular evidence is more important than fossil evidence, that they do share a common ancestor in molecular terms." Now, I would point out, because I'm sure you're about to ask me about the difference between my statement in the deposition, which was taken in May, and my testimony here today, which is in the month of September, and the difference is I've read the paper on these small fossils. This is a new development in science, and that's why my answer today is somewhat different. Q. Is the point you make about many people would argue that molecular evidence is more important than fossil evidence, when you say the many people, are you referring to scientists? A. Yes, sir, I am. Q. Sir, you testified about the Dover statement in your direct, correct? A. Yes, that's right. I do believe I did testify about the Dover statement. Q. And you never spoke to a board member from Dover, is that correct? A. Let me think hard about this. Q. Let me rephrase the question. You never spoke to a board member about the statement? A. I don't believe I have spoken to any members of the Dover board of education about any matter. I was just trying to make sure that was correct. Q. And you never spoke to any administrator at the Dover area school district about the statement? A. Sir, I believe that's correct, and I also believe that when I became aware that Dover was a community that was discussing this contentious matter of how to teach evolution -- Q. Sir, did you speak to an administrator from Dover? A. Well, I'm trying to give you an answer. I can't give you yes or no because I did e-mail a number of people in Dover, and I suspect, these are people whose names I got off of the Dover area school district web site, and I don't want to answer yes or no because, you know, one of those people might have been like an assistant superintendent, I can't remember if it was a principal or a department chair, I did send e-mails to a couple of people. Q. Were they -- A. Sorry, and I'm not being evasive, it's just the question is not being able to recollect who they were, but I want to make sure that the record and the court does reflect that I did indeed send a couple of e-mails to people in Dover saying I would support them, I would be happy to answer their questions about evolution, and you know, one of them might have been an administrator. So that's why I'm being a little fuzzy on this. Q. My question was did you speak to any administrator about that statement, the Dover statement that you testified about on direct. A. Under the qualifications that I've just given you, which is, you know, I might have sent an e-mail to somebody who happened to be an administrator, I believe the answer to that is no to the best of my recollection. Q. Do you recall if that e-mail discussed this statement in any fashion? A. I don't believe it did, but I can't, I don't have a copy of it and I can't be positive. Q. If you turn to your deposition at page 321? A. Okay. Q. Starting with the question at line 4, can you read the question and read your answer down through line 12? A. Well, the question is, it presupposes something before it, it says, "Whereas the theory of evolution is not a fact." Q. Your answer? A. No. Sorry, my answer is, "No scientific theory is a fact, and the Dover statement is very clear that it uses the theory of evolution in the second sense, because when the statement says Darwin's theory is a theory, and when you talk about Darwin's theory, you are specifically talking about the descent with modification and natural selection." I think it's very difficult to make sense of that answer without the context of the question that precedes it. Q. Did you correctly read your answer in the deposition? A. Yes, sir, I did. Q. Now, in this statement it says, the Dover statement, "a theory defined as a well tested explanation that unifies a broad range of observations," do you recall this statement has that definition of theory in it? A. Yes. Q. And that is a correct and proper definition of theory? A. Yes, and I believe that in my direct testimony I testified that yes, that was I thought a pretty good definition of the word theory. Q. And it properly defined the theory of evolution? A. It properly defines a scientific theory, and because the theory of evolution is a scientific theory, yes, it fits the theory of evolution. Q. I just want to revisit that question from page 321. Within the context of the preceding question that was addressing the different meanings of evolution that I believe you testified to on direct and that I had asked you on cross whereas evolution can mean change over time or it can also mean evolution as a theory, the processes of how that evolution may have occurred, the first may, is more akin to a historical fact, the second sense is a theory which not a fact, is that the correct context of your answer? A. The correct context of the area, the first part is perfectly fine, you said a theory which is not a fact, and again theories are a higher order of explanation than fact, and in that sense that was correct, right. Q. And that's the context for the answer that you gave on page 321 of your deposition? A. Yes, yes, that is right. The reason I wanted to point that out is because my answer begins the second sense, and of course if I just read that into the court record, one has no idea as to what is meant by the second sense without the preceding question. Q. And that second sense is the theory sense of the meaning of evolution that we just discussed? A. That's right, which is a coherent testable scientific explanation as to how the process of change over time has taken place. Q. If you go to your deposition page 329? A. Sure. Q. Again these are more questions I've asked you about that, the Dover statement. If you look at, read the question beginning at line 15, and then your answer that follows? A. Okay. Question, the next sentence, "The reference book 'Of Pandas and People' is available for students who might be interested in gaining an understanding of what intelligent design actually involves. Do you have any problems with that statement? Answer: No, I think the fact that the board has provided that book, made it available to students, and that they have characterized it as a book on intelligent design, that's all a fair statement. So I think that particular statement is something that effectively communicates the reality of the situation to students, which is why we got this book, it's available for you and this book describes intelligent design." Q. And just a correction, I believe which is "we got this book," not "which is why we got this book," correct? A. I'm sorry. If I read it wrong I apologize. "Which is we got this book, it's available for you, and the book describes intelligent design." Q. Is that a truthful answer? A. Of course it's a truthful answer. Q. Sir, would you open up your textbook, Exhibit 214? A. Sure. Q. Turn to page 15 for me, please. If you read the paragraph that begins with the words " A useful"? A. Sure. " A useful theory may become the dominant view among the majority of scientists, but no theory is considered absolute truth. Scientists analyze, review, and critique the strengths and weaknesses of theories. As new evidence is uncovered a theory may be revised or replaced by a more useful explanation. Sometimes scientists resist a new way of looking at nature, but over time new evidence determines which ideas survive and which are replaced. Thus, science is characterized by both continuity and change." Q. Is that correct with regard to all scientific theories? A. Yes, I believe it was. This is a chapter on the nature of science, and Joe and I wanted to emphasize to the students to scientific views may change over time in light of evidence. Q. And that includes the Darwin theory of evolution? A. Darwin's theory is a scientific theory. All theories are characterized by continuity and change, yes. MR. MUISE: No further questions, Your Honor. THE COURT: Thank you, Mr. Muise. Mr. Walczak, do you have any redirect? MR. WALCZAK: Yes, Your Honor. (Brief pause.) REDIRECT BY MR. WALCZAK: Q. Good morning, Dr. Miller? A. Good morning. Q. I want to cover six or seven points that were raised by Mr. Muise. First of all, if we could put Exhibit 124 on the screen? Is this the four paragraph statement that I asked you to comment on in your direct exam? A. Yes, sir, it is. Q. And as Mr. Muise pointed out, this statement was read in January. What I'd like to do now is put up I believe it's Exhibit 131, which is a statement that was read to the students in May or June that was revised slightly. Are you able to highlight, Matt, the four paragraphs? Let me represent to you, and if I'm in error I please would invite an objection, but I believe the only paragraph that is changed in any way is the third one. If you could please read that to yourself? (Brief pause.) A. I have read it, thank you. Q. Can you identify what the change would be? A. You're not playing fair. You should have told me to pay attention to the other one and read this one, but I have to tell you I don't see the change right there, I'm sorry. Q. Let me see if we can put both -- A. I thought Mr. Muise's phylum quiz was going to be tough. Q. Just wait until you get my grades. So the one on top is the one from May or June. A. Oh, okay. Now, sir, I see the difference. Q. And so what is the difference? A. Well, they left out an apostrophe in the possessive on Darwin's in the June one, and -- THE COURT: We've lapsed into English there. A. Your Honor, I'm sorry. It's the teacher in me, I can't help it, and I noticed that as far as I can tell the only other thing is that is the phrase "along with other resources," I think that's correct. Am I missing anything else, Mr. Walczak? Q. That's what I can see as well. A. Okay. I don't see any other grammatical mistakes either. Q. Besides "Pandas" do they mention what those specific resources are? A. No. The only book I see mentioned in "Pandas," the only book I see mentioned is "Pandas," and other resources unnamed. Q. Does this change in the May or June reading of the statement, does this in any way change the opinion which you gave to the court about whether the statement promotes student understanding of science and evolution? Does this change your opinion in any way? A. No, sir, it does not. It's still very clear that in contrast to the second paragraph, which is designed to specifically undermine Darwin's theory of evolution, or the theory of evolution in general, the third paragraph has no such undermining language with respect to "Pandas and People," and that's the only book that it specifically mentions. I think the effect is pretty much the same. Q. There's a term that has been used throughout the testimony thus far, and it is "origin of life," and is that term used in a scientific way? Is there a way that scientists use the term origin of life? A. Yes, sir. That term is used in a scientific way. Q. And how is that term defined? A. Well, I think the definition is reasonably straightforward, and that is origins of life research is research on, research concerning the conditions on this planet before life first appeared about three and a half billion years ago, and it involves research designed to reveal the pre-biological chemical processes that may have given rise first to self copying or self-replicating molecules, and eventually to the first living cells. Q. And is that how you have used the term whenever it's employed in your book? A. I believe it is. It's not something, it's not a question I have thought about in detail, but I believe that's exactly how we used it. Q. And when you have testified using that term, either in response to a question, that is, has been your interpretation of origins of life? A. Yes, sir, that is absolutely correct, that origins of life refers to in every sense in which I have used it and Joe Levine has used it in our book and I think in my testimony as to the origin of the first self-replicating molecules and the first living cells on this planet. Q. When you use origin of life, you're not talking about origin of man? A. No, absolutely not, sir. I think I've been very careful to use origin of species in terms of referring to that, and human origins or human evolutionary descent is quite a distinct topic from origin of life. Q. Mr. Muise asked you a fair bit about your personal religious views. A. Yes, I think he did. Q. And he also asked you about religious and philosophical statements made by other scientists. A. Yes, he did, and he I think named probably three of them in particular. Q. Professor Dawkins was one? A. Correct. Q. Are statements, are these scientific statements? A. No, sir. As I believe I answered for Mr. Muise, none of those statements are scientific in any sense. Q. And do scientists make say religious statements? A. Of course they do. Q. And philosophical statements? A. Yes, sir, they do. They even make statements about baseball, as Steven J. Gould did frequently, and those are not scientific statements. Q. Just because a scientist said something doesn't make it scientific? A. Of course not. Q. And are you obviously have strong religious views you published in "Finding Darwin's God? Are these views published anywhere in your biology textbook? A. No, sir, of course not. Q. Are they published in any of your scientific journals? A. They are not published in any of my scientific papers. Q. Why not? A. Because they aren't science. It's very simple. Q. I want to direct your attention to your testimony in the Sellman case about which Mr. Muise asked you, and I believe that's Defendant's Exhibit 211. And Mr. Muise asked you about your testimony there where you were asked about the modern usage of creationism. A. Yes, he did. Q. And as I recall your answer was essentially the definition of what would be called young earth creationism. A. Yes. In fact, I don't recall Mr. Muise asking me a question. I recall him asking me to read my testimony, and he did not ask me any questions about the nature of that testimony, and he did not ask for any clarifications. Q. It might appear that your testimony in Sellman is inconsistent with what you may have testified yesterday. Can you reconcile the testimony? A. Yes. It's very easy to reconcile that testimony, and that is that in Sellman I should have been much more specific than I was when I said what is generally meant by creationism. And in particular the definition I give to creationism is one that in this trial in order to distinguish it from intelligent design I gave to scientific creationism or young earth creationism. Now, my testimony in Sellman I think could probably be construed if one does not appreciate the sort of general way in which I used the word creationism as to exclude intelligent design as a creationist theory simply because it doesn't make the scientific predictions that young earth creationism does about the geological record and the age of the earth, but in the most general sense it is a form of, it is a form of special creation or special creationism. Again this term was not at issue in the trial in Atlanta, and that's one of the reasons why I did not carefully define that term as I should have in my testimony in Sellman. Q. But, Dr. Miller, in Sellman you were in fact asked about intelligent design, were you not? A. My recollection is that I was. Q. I'd like you to turn to page 139. A. This is my testimony in Sellman? Q. Yes. This would be Defendant's Exhibit 211. A. Sir, I'm going to need a copy of it. Mr. Muise gave me one, but then he took it back. Q. You don't remember it, sir? A. I've got 138 down pretty well, but 139 I'm having trouble with. Q. May I approach the witness? THE COURT: You may. A. Thank you. Q. Now, the questions Mr. Muise asked you about your answer to I believe as you put it in the modern usage of creationism was on page 138 -- A. That's correct, sir. Q. -- of the transcript? So now on page 139 I'd like you to read for the court line 7 through 11, please, beginning with the question there. A. Sure. Line 7 begins, "Question: When you were writing your material on evolution, did you add any information on intelligent design?" The answer is, "No, I did not, and the reason once again is because we have been unable to find scientific evidence supporting the idea of intelligent design." Q. Now, let me ask you to turn to the next page and read from line 4 to line 14 on 141, and I'll note that the first question there is by Judge Cooper in that case. A. Perhaps it would help if I read that part to make clear. So I'll begin on line 4 as you requested. " THE COURT: Is it religious based?" Q. I'm sorry, excuse me. And did you know what the court was referring to when it says "it" there? A. Oh, excuse me, let me go back to the context. The court is, the term "it" is referring to intelligent design. Q. Thank you. A. So with reference to the intelligent design, the transcript begins, "COURT: Is it religious based? WITNESS: The advocates, Your Honor, of intelligent design would argue very strongly that their ideas are not religious based. They would say it is a straightforward conclusion of analysis of information theory and what they regard as the deficiencies of evolutionary theory. "But I think it's also clear that the people who embrace intelligent design in the United States argue very strongly that they have a religious, argue very strongly that if intelligent design is not included, then their own religious beliefs will suffer. So they certainly in my experience many of them have religious motivations for embracing this particular idea. "COURT: How do you see it? WITNESS: Pardon me sir? COURT: How do you see it? WITNESS: How do I see it? I'm a -- if I had to describe myself philosophically, I'd describe myself as a pragmatist, which if it works it's good enough for me. And with respect to intelligent design, I'm still waiting, and I've been waiting for about ten years for intelligent design theory to provide a single testable scientific explanation that holds up under peer review, under scientific analysis, and it simply hasn't. "To put that in terms that my family in southern Indiana, mostly a farming family, would understand, this dog don't hunt. And in the case of intelligent design, I think that's a very good way to describe it." Q. Could you, I'm sorry, read on through line 14? A. Yes, sir. "Question by Attorney Michael Minnaeli: Maybe part of what His Honor is asking you about is how you see it in terms of a religion. Intelligent design, positing a designer, a creator Answer: Well, by definition any explanation that requires a creator, an intelligent designer, is religious on its, is certainly religious on its face, and therefore the very fact that intelligent design presupposes a creator makes it so." Q. I want to shift focus here a little bit. In the passage you just read, near the end you testified that you're still waiting for a single testable scientific explanation about intelligent design. Mr. Muise asked you a number of questions about whether irreducible complexity was scientifically testable, and I believe you testified in fact that it was, that tests have been done. Is irreducible complexity subject to scientific testing? A. As irreducible, if irreducible complexity is carefully framed the way that Dr. Behe did in his book "Darwin's Black Box," it makes a testable prediction, and that testable prediction is that the parts, the individual components of irreducibly complex machines should have no functions on their own, and that is testable, and as I indicated in my testimony yesterday we can actually carry that test out in many of the systems that Dr. Behe cites, and in every case it fails that test. Now, the test of irreducible complexity as a scientific statement is not a test of intelligent design, and the reason for that is irreducible complexity by itself makes no argument for design. It makes an argument against evolution. And it's that argument, the argument of evolution not working, that we can subject to a scientific test. But that's not proof of design. That's not even an argument for design. That is simply a scientific statement made against evolution that is testable. As I indicated it fails that test, but even if it passed the test, that wouldn't be an argument for design. Q. And when you say Dr. Behe and intelligent design have made predictions, would that be the same as hypotheses? A. Yes. I regard certain of the statements that Dr. Behe has made as hypotheses that make testable predictions. For example, he looked at the blood clotting cascade, drew the inference that all the parts of the cascade had to be present for clotting to occur, and used that as an argument from irreducible complexity that the cascade could not have evolved. "Pandas" makes exactly the same argument, and that argument can be subjected to a test. And that is if we find organisms in nature that are missing parts of that cascade, if that prediction is right, their blood should not clot. And I brought into court yesterday two examples, documented examples by science and peer reviewed journals that showed that that prediction was wrong. The blood of whales and dolphins clots, and the blood of the puffer fish clots, and had that prediction been right, neither organism should have been able to clot its blood. Q. So one of the hypotheses that's been advanced to support irreducible complexity both in "Pandas" and by Dr. Behe has been refuted? Is that the appropriate scientific term? A. I think refuted, falsified, showed to be incorrect, found out to be wrong are all appropriate scientific terms in this case. Q. And would you say the same thing about the prediction that the bacterial flagellum is irreducibly complex? A. Yes, sir, I would. And the reason for that once again is the prediction is that all of the parts are necessary for function. In the absence of any of the parts there is no function that can be favored by natural selection. Once we discover that ten of those parts in a different context have a selectable function, in other words they work, they do something else that's useful to the cell, the hypothesis is tested and found to be wanting. It's falsified. Q. And the immune system was another hypotheses used by intelligent design proponents? A. That's correct, sir. Q. I believe you pointed to ten or eleven peer reviewed scientific papers and studies that have refuted that hypothesis? A. In the interests in the case of the immune system Dr. Behe made a different prediction. Because the immune system has so many different parts and so many different cells and so many interacting systems that he could not point to a single biochemical cascade like the blood clotting, or a single structure like the flagellum, but instead he pointed to the complexity of the system that shuffles genetic information, makes it possible for us to make antibodies against just about any foreign invader, and he said that system, because it required multiple parts, could never be explained in evolutionary terms. I think he said something to the effect that Darwinian explanations are doomed to failure, and it turns out that ten years of research have proven that Darwinian explanations of that system have been abundantly successful. So in that case that prediction, too, has not borne out. Q. So the hypotheses advanced by the proponents of your irreducible complexity have been invalidated? A. They've been invalidated in every case that they've been examined. Q. Now, but I'm trying to distinguish irreducible complexity from intelligent design. A. Correct. Q. Let's assume that in fact there was support for irreducible complexity. Let's say that all of the scientific studies and literature had come out differently and you had not found an evolutionary pathway. Is that support for intelligent design? A. No, sir, it is not. Q. Why not? A. It's not support for intelligent design because intelligent design presupposes a mechanism that exists outside of nature, can't be tested, can't be subjected to natural examination. If irreducible complexity held up, if we couldn't find subsets that were useful, it might mean that these systems had to be assembled by a pathway that was different from the Darwinian pathway, from the evolutionary pathway, and we might then look for another pathway or other evidence in favor of that. Intelligent design would be a possibility, but intelligent design is always a possibility for everything. It's entirely possible that this universe was intelligently designed ten seconds ago, and each of us was put here with false memories and false childhoods. That's not a testable hypothesis. Is it possible? Yeah, sure. The problem with intelligent design as a scientific explanation is that it can be used to explain in non-scientific terms literally anything, and that's why it is not science. Q. If you could recap, what are, you talked at the very beginning of your testimony you talked about the ground rules of science, what are those ground rules? A. Well, I have to think very hard, because if I don't replicate my testimony exactly I'm sure Mr. Muise will have something to say about it, but I think the ground rules of science in the most general sense are that science is limited to the natural world. We do science based on what we can see, what we can observe, what we can test. Experiments we can carry out, control, and watch. We then look at the results of those experiments, we try to make inferences based on them, and we try to formulate testable hypotheses on the basis of that evidence. Then go out in the world and carry out those tests. The explanations that we put forward as testable hypothesis qualifies as science only if they are natural explanations, because if they are not natural explanations they can't be tested, and that would render them outside of science. And then finally the other ground rules that I'm sure I mentioned in one context or another is that science and scientific methods have to be open, they have to be made freely available for the criticism of other scientists. We often call that peer review in the formal sense, and they have to be repeatable in the sense that other scientists can carry out the same experiments, the same investigations, make similar observations, and either confirm or deny the results that we have gotten. Q. So taking those ground rules of science and applying them to the inference for design, not the irreducible complexity. A. Yes, sir. Q. The inference for design, does that inference lead to rules of science? A. No, sir, not by any sense. Q. And why not? A. It does not meet it because the idea of design is that forces acting outside of a natural world that we cannot see, cannot replicate, cannot control, and cannot test have produced changes inside the natural world. Now, they may well have. You remember my tongue in cheek explanation of the success of the Red Sox. They may well have, but that explanation is not testable by science, and therefore it cannot qualify as part of the scientific process or as the scientific theory hypothesis or idea. Q. Does that make it wrong? A. No, sir, it does not make it wrong. Explanations based on the supernatural could always be corrected, but since they lie outside the mechanisms of science to investigate, they are simply not part of science. Q. Are there any peer reviewed publications, or scientific papers as you put it, on your curriculum vitae to support this inference for design? A. I have not found a single peer reviewed paper anywhere in the scientific literature that supports the idea of intelligent design. Q. I want to cover one more area that Mr. Muise raised. Unanswered questions, there are unanswered questions in evolution. A. I certainly hope so. Or evolutionary researchers are out of business as of today. Q. You testified in fact there are unanswered questions in every scientific theory? A. Yes, sir, there are. Q. Do we know everything there is to know in other areas of study, let's say history? A. Certainly not. My daughter, my younger daughter is a history teacher, majored in history, specialized in studying the American Revolution. There are unanswered questions in the history of our own republic. So the answer is yes. Q. Do we know everything there is to know about the battle of Gettysburg? A. Well, we know who won. At least we're pretty sure who won. And we know where it took place, we know when it took place. We know the generals on both sides. We know some of the troop deployments. But if you were for example to say let's take a particular soldier from a Rhode Island regiment who wrote home to his family on day two of the battle of Gettysburg, we might know something about that, but you know, we might not know where he was or what he was on day one or where he was or what he did on day three. Now, I dare to say that there are thousands of examples in which we do not know exactly what happened in a particular place on that battlefield at a particular time. Another way of putting it is that there are gaps in the historical record. But those gaps, they're worth filling, they're interesting, because we'd like to know what every soldier did on both sides in this pivotal battle in American history. So those gaps are unacceptable, and historians try to fill them. If you discovered the unknown diary of a soldier who had been at Gettysburg, that would be great stuff. Give it to a historian, they'd write papers about it, they'd thank you. But none of this changes the conclusions that we can make from the abundant historical record that already exists as to where, when, and how the battle took place, or what the ultimate outcome was. So we can make accurate and even profound historical conclusions without having a complete historical record. Q. You're talking about history here. Does that analogy apply to science? A. Of course it does, because natural history is part of scientific investigation. Much of geology is historical in the sense that it tries to understand the processes that made up our earth. Much of cosmology and astronomy is historical in the sense that it tries to understand what has put together our universe, our solar system, and other things out there in the universe, and a great deal of biology is historical in that paleontology and even through molecular genetics we try to reconstruct what happened in the past. Q. And does the fact that we don't know all the details undermine the soundness of evolutionary theory? A. No, sir, it certainly does not. MR. WALCZAK: May I have just one moment, Your Honor? THE COURT: You may. MR. WALCZAK: I have no further questions. THE COURT: We'll give Mr. Muise the last shot. Any recross? MR. MUISE: No further questions. THE COURT: You may step down. MR. MUISE: I have forgot the exhibits. THE COURT: Do you have an agreement as to the exhibits, the numbers? I can read you the roster of what I have, and you can work along with me as we do this. I have P-11, pages 7, 37, 65, 99, 100, 139, 140, 145, 146, and 150. Does that pick up everything in P-11? MR. WALCZAK: I believe it does, Your Honor, but we would move the entire book into evidence. THE COURT: Any objection? MR. GILLEN: Not at all, Your Honor. THE COURT: P-11 is admitted in its entirety. Then we have the following additional exhibits. P-31, P-124, P-127, P-192, P-198, 214, P-214 that is, and P-245. Any objection to those? MR. GILLEN: No objections, Your Honor. THE COURT: All right. They're admitted. P-434, I'm not sure what that is. What is 434? MR. WALCZAK: I'm sorry, Your Honor? 434? THE COURT: 434 I think is "Darwin's Black Box," I'm not sure. COURTROOM DEPUTY: Yes, it is. THE COURT: There are certain pages referred to in that, 39,130, and 139. Is your pleasure to admit the book or the pages? MR. WALCZAK: We'd move to admit the book. THE COURT: All right. Any objection? MR. GILLEN: We have no objection, Your Honor. THE COURT: All right, that's admitted in its entirety. P-643, again I'm not sure what P-643 is. That is -- COURTROOM DEPUTY: Excerpt of Nature Magazine, September of 2001. THE COURT: That is page 69 from Nature Magazine. I'm assuming you probably want to admit the page only, but tell me if I'm incorrect. MR. WALCZAK: We actually like to admit the article that starts on page 69. THE COURT: Any objection? MR. GILLEN: No objection. THE COURT: All right. The entire article is admitted, that is P-643 in its entirely. 649 was -- COURTROOM DEPUTY: A magazine article in the National Academy of Science. THE COURT: There were three pages referred to. 27, 5, and 16. MR. WALCZAK: We propose to admit that entire publication. MR. GILLEN: No objection, Your Honor. THE COURT: All right. 649 is admitted, P-649 in its entirety. We also have P-654 and P-665. Any objection to either of those? MR. GILLEN: No, Your Honor. THE COURT: All right. They're admitted. Any other plaintiff's exhibits that we have missed, Mr. Walczak? MR. WALCZAK: Some others, Your Honor. THE COURT: Because of the abundance of exhibits, should you miss something, and this will, I'll afford the same courtesy obviously to the defense, we'll double back. We're going to do the best we can to get them in, but if you discover for example over the lunch break that we forgot something, we'll take it up. That's all I have. MR. WALCZAK: Your Honor, 192 is the publication from the National Academy of Sciences. THE COURT: I recited that, and that's admitted. MR. WALCZAK: That entire exhibit? THE COURT: Yes. MR. WALCZAK: Your Honor, we would also offer for the aid of the court the demonstrative exhibits that Dr. Miller relied on, and it's not necessarily to come in as evidence, but as Your Honor is reviewing the transcript they might be of assistance to the court. THE COURT: In particular? MR. WALCZAK: There were the five demonstrative exhibits with the slides I believe that's on the chimpanzee genome, hemoglobin, the bacterial flagellum, blood clotting cascade, the immune system. THE COURT: In what form do you want to put those into the record? Do you have them printed? MR. WALCZAK: Yes, Your Honor, I do believe there are prints of the slides that are already in the exhibit binder. THE COURT: I was looking at them on the screen, so I didn't look at the binders. They're shaking their heads no, there may not be. If you want to supplement the record inasmuch as they were referred to and see if we can have an agreement, that's one where I'll allow you to double back if you want to, to put them in. MR. WALCZAK: Your Honor, Mr. Gillen and I have quickly reached agreement that we would agree to produce these slides of both of our respective demonstratives. THE COURT: The nods of the heads would indicate a meeting of the minds. So however you get them in, and why don't you mark them appropriately and we'll get them in at that time, and that would go for any demonstrative exhibits. Now, on cross examination by Mr. Muise, I have D-233, D-214, D-210, and D-211. Mr. Muise, your pleasure on that. Do you want to wait, or do you want to move to admit them now? MR. MUISE: We had 214, Your Honor, the biology book, would you mind if we have that admitted at this time? THE COURT: I couldn't hear you. Say again? MR. MUISE: The biology book, 214? THE COURT: You want to admit that? MR. MUISE: We want to admit that, Your Honor. Exhibit 210. THE COURT: I have 210. MR. MUISE: We'd also admit -- MR. WALCZAK: I'm sorry, Your Honor. THE COURT: 210 is the article. So you want to move 214 and 210. Any objection, Mr. Walczak? MR. WALCZAK: No, Your Honor. THE COURT: All right. They are admitted. How about 233 and 211? MR. MUISE: We'll move for the admission of 233, Your Honor. THE COURT: Mr. Walczak? MR. WALCZAK: What is that? MR. MUISE: The Pennsylvania academic standards. MR. WALCZAK: No objection to those. THE COURT: 233 is admitted. And finally 211? MR. MUISE: We're not going to move for the admission of 211, Your Honor. THE COURT: So D-233, D-214 and D-210 are admitted. Plaintiffs will be granted leave to submit the demonstrative exhibits in some form, and you can mark those appropriately and we'll take those out of turn at that point. That would seem to cover all the exhibits for that witness. And you may call your next witness. We'll go until about 12:15 I think. So there's certainly time to start the next witness. MR. HARVEY: Your Honor, the plaintiffs call to the stand plaintiff Tammy Kitzmiller. (Tammy Kitzmiller was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: Please be seated and state your full name for the record. THE WITNESS: Tammy Kitzmiller. DIRECT EXAMINATION BY MR. HARVEY: Q. Please restate your name. A. Tammy Kitzmiller. Q. You're a plaintiff in this action? A. Yes, I am. Q. Ms. Kitzmiller, please tell us where you live. A. 2045 Andover Drive in Dover. Q. And how long have you lived at that address? A. With the exception of the time period between December 2001 and August 2003 I've lived in the Dover school district since 1993. Q. Do you have children? A. Yes, I do. Q. How many children do you have? A. I have two daughters. Q. Please tell us their names, just their first names, and their ages. A. Megan is 17, and Jessica is 15. Q. Do they attend school? A. Yes, they do. Q. Please tell us what school they attend and the grades. A. They're high school. Megan is a senior, and Jessica is a sophomore. Q. So that means that Jessica is in 10th grade right now? A. Yes. Q. In Dover High School, correct? A. Correct. Q. And did Jessica take the biology class when she was in 9th grade? A. Yes, she did. Q. Was that in the 2004-2005 school year? A. Correct. Q. How long have your daughters been attending public school in Dover? A. Since kindergarten. Q. Please just tell us where you went to high school. A. Bermudian Springs. Q. Did you have any formal education past high school? A. No. Q. And please tell us what you do for a living? A. I'm an officer manager for a landscape company. Q. Ms. Kitzmiller, did there come a time when you learned that the Dover area school district board of directors was considering approval of a biology textbook? A. Yes. That would have been the summer of 2004. Q. Do you remember the month, what month it was? A. I believe it was June. Q. And can you tell us what -- first of all tell us how you learned about it. A. Through the newspapers. Q. Do you specifically remember which newspapers? A. It would either have been the York Dispatch or the York Daily Record. Q. Tell us what you learned. A. There was a question which biology book the school would approve. I also learned that certain board members had a problem with the biology book. There were statements made that it was laced with Darwinism. They also wanted to balance the biology curriculum with creationism. Q. And then did you subsequently learn anything more about the approval of a biology textbook? A. Yes. From what I can recall I remember the books being approved with the exception that they also wanted a supplemental book, "Of Pandas and People," in the classroom. MR. GILLEN: Your Honor, just for clarification, I want to make sure that we have preserved our standing objection to the hearsay in the newspaper articles. There's testimony about that based on our motions in limine. THE COURT: We'll note the objection and the standing objection as it relates to the newspaper article. It may be in a different context with respect to this witness, so feel free if you want to restate it in a different context, but I'll certainly grant that standing objection per your motion in limine. MR. GILLEN: Thank you, Your Honor. BY MR. HARVEY: Q. Ms. Kitzmiller, did there come a time when you learned that the board of directors of Dover area school district had changed the biology curriculum? A. Yes. Q. And when did you learn that? A. When the resolution was passed in October of 2004. Q. And what did you learn? A. I learned that they would be reading a statement to the biology class. THE COURT: Let me stop you for a second. I think we're going to have trouble hearing you, and I know that's hard, you probably haven't testified before and you don't want to talk any louder. Why don't you move the microphone just a little bit closer? I'm guessing the people can't here. Try that. You don't have to get right on top of the microphone, that should be all right. You may proceed. MR. HARVEY: Your Honor, may I approach the witness with an exhibit? THE COURT: You may. BY MR. HARVEY: Q. Matt, if you can, please, put it up on the screen. That's P-127. Ms. Kitzmiller, I've handed you what's been marked as P-127. Have you had a chance to look at it? A. Yes. I have seen this at home. Q. Can you tell me what it is? A. Yes. It is a biology curriculum update which was a newsletter that was mailed to residents in the Dover district. Q. Do you know where it was mailed from or who mailed it? A. From the school district. Q. And did you receive it in the mail? A. Yes, I did. Q. And can you tell us, your daughter was in the biology class in January of -- excuse me, 2004, when this segment on evolution was introduced, correct? A. 2005. Q. Thank you very much. And can you tell us your understanding of how the change to the biology curriculum was implemented in the classroom? A. Yes. The statement that's referenced at the bottom of the curriculum update, an administrator or walked into the classroom -- well, I'm guessing that if there were students that objected or parents that opted their children out, they left the room, and then an administrator walked in and read the statement, leaving no room for questions, answers, and then they left. Q. How do you know what happened? A. My daughter was in the class. She opted out. Q. And do you know why she opted out? A. She didn't want to be singled -- well, she didn't feel she should be singled out, but she also did not feel she needed to be in the classroom if her teacher didn't have to be there. Q. Now, I'd like to know if you can tell us whether you feel that you've been harmed by the actions of the Dover area school district board of directors. A. Absolutely. I feel that they have brought a religious idea into the classroom, and I object to that. I do not think that this is good science. There seems to be no controversy within the scientific community, and I would think the biggest thing for me as a parent, my 14-year-old daughter had to make the choice whether to stay in the classroom and listen to the statement, be confused, not be able to ask any questions, hear any answer, or she had to be singled out, go out of the classroom and face the possible ridicule of her friends and classmates. MR. ROTHSCHILD: We have no further questions. THE COURT: Cross examination, Mr. Thompson? CROSS EXAMINATION BY MR. THOMPSON: Q. Mrs. Kitzmiller, I'm Richard Thompson. I'm representing the defendants in this case. How many school board meetings did you attend in the year 2004? A. Off the top of my head, I attended in November and December, that probably would have been four. Q. When is the first time you attended a school board meeting in 2004? A. It would have been in November. Q. In November? A. Yes. Q. That was after the policy itself was voted on by the school board, is that correct? A. Correct. Q. And so you really were not involved or did not hear of the debate that was going on in the school board on that particular policy, personally hear that debate, is that correct? A. I had no personal knowledge, no. Q. You had no personal knowledge of it? A. No. Q. Now, also most of the information that you just gave your counsel was based upon your reading of accounts in the newspapers, is that correct? A. That's correct. Q. And so you don't know whether those accounts were accurate or not as they reflected the debate of the school board when they were determining whether to implement the policy or not, is that correct? A. I would have to say that's correct. Q. Okay. Now, you were referred to a newsletter that you got in February 2005, is that correct? A. Correct. Q. And did you object to the parents being informed of what the school board was going to do? Not the exact substance, but being informed what the school board was going to do, were you pleased at least to be notified of what they intending to do? A. That's a tough question. Obviously the school district has a right to release the information as to what they're going to do. The manner in which it was done I would have questions with. Q. You mentioned about your daughter having to opt out of that particular science class when they read this one minute statement, is that correct? A. Correct. Q. Now, there are opportunities that the school board gives parents to have their children opt out on many different kinds of subject matter, is that correct? A. That's correct. Q. They have a very lenient opt out policy, is that correct? A. I would assume, yes. Q. Yes. Okay. Now, one of the -- or the only book that the school board mentioned by name was "Of Pandas and People," is that correct? A. That's correct. Q. Do you know whether your daughter has ever read any part of "Pandas and People"? A. I have no knowledge that she has. MR. THOMPSON: Okay. No further questions. THE COURT: Mr. Harvey, any redirect? MR. HARVEY: No redirect, Your Honor. THE COURT: You may step down. Thank you. Do you want to take another witness? MR. HARVEY: Absolutely, Your Honor. Plaintiffs call to the stand Aralene B. Callahan. (Aralene Callahan was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: Please state and spell your full name. THE WITNESS: My name is Aralene Joan. Callahan. My nickname is Barrie. A-R-A-L-E-N-E, C-A-L-L-A-H-A-N. Barrie is B-A-R-R-I-E. MR. HARVEY: Your Honor, I have a notebook of exhibits, all of them that are just a complication of some of the exhibits in the binder. I'd like to give it to the witness. THE COURT: You may, sure. DIRECT EXAMINATION BY MR. HARVEY: Q. Mrs. Callahan, please tell us where you live. A. 2030 Skytop Trail. Dover, Pennsylvania 17315. Q. How long have you lived there? A. About thirty years. Q. Are you married? A. Yes. Q. Tell us your husband's name, please. A. Frederick Brian Callahan. Q. Do you have children? A. Yes. Q. How many children do you have? A. Three. Q. Please tell us their names and their ages. A. Arie is 23, Danny's almost 21, and Katie is almost 17. Q. Do any of them attend school in the Dover area school district? A. Yes. Q. Which child? A. Katie. Q. And what school does she attend? A. Dover area high school. Q. What grade is she in? A. 11th. Q. Please tell us what high school you went to. A. Lower Marion High School. Q. Do you have any formal education beyond high school? A. Yes. Q. Please tell us what formal education you have. A. I have a B.S. from Ursinus College. Q. What do you have a B.S. in? A. Psychology. Q. And did you at any time serve on the Dover area school district board of directors? A. Yes. Q. Please tell us what years approximately to the best of your recollection you served on the board of directors. A. I think it started in `93. I know it ended in 2003. Q. Do you know what month of 2003? A. November of 2003 would have been my last meeting. Q. During the time that you were on the Dover area school district board of directors did the board have retreats? A. Yes. Q. What's the first board retreat that you can remember? A. The first board retreat using the word retreat was in January of 2002. Q. And can you remember specifically what happened at that retreat? A. Specifically at that retreat I don't know. Q. What's the next board retreat that you recall after the retreat in January of 2002? A. That would have been March of 2003. Q. Do you know Allen Bonsell? A. Yes. Q. Who is Allen Bonsell? A. Allen Bonsell at that time was a school board member also. Q. And did Mr. Bonsell have at that point in March of 2003, did Mr. Bonsell have any positions with respect to committees on the board? A. He I believe the entire time that I served on the board with him he was chairman of the curriculum committee. He may have had other committee positions, but I can't recall. Q. Now, do you remember a part of this retreat in March of 2003 where the board members went around the room and expressed issues that were of concern to them? A. Yes. Q. And tell us what you remember just generally about how that process worked. A. Each board member had some time to talk about issues that were of concern to them at that time. Q. Do you remember what Allen Bonsell identified for as issues of concern to him at that time? A. Yes, I do. He expressed that he did not believe in evolution, and he also said that if evolution was part of a biology curriculum, creationism had to be shared 50/50. Q. Did you take notes during that board meeting? A. Yes. Q. What did you write down generally during that board meeting? A. Just different notes that people had said. I wrote down a couple of things that were concerns of mine also. Q. When did you take these notes? A. As I was attending the meeting. Q. And as the people were speaking? A. Yes. Q. Now, I'd like you to take a look at what's been marked as P-641. It's in the notebook in front of you. Do you recognize P-641? A. Yes. Q. Tell us what it is. A. It's the agenda from the board administration -- excuse me, board administrative retreat from March 26th, 2003. Q. And do you know where this document came from? A. It came from my home. Q. And how was it that, tell us how it came to be in your home. A. Well, it was in a pile of board information that I still had. Q. And is there anything written on this document about what Allen Bonsell said at that meeting in March of 2003? A. It has, "Allen - American history, founding fathers." Then "50/50 evolution versus creationism," and then an arrow from evolution, "Does not believe in evolution." Q. Now, do you remember anything else that Mr. Bonsell said at that meeting? A. No. Q. I'd like you to look at the second page of what's been marked as P-641. Do you see that? A. Yes. Q. And what's that? A. These were the school board members' issues from the previous year. Q. And was it part of the first page of P-641? A. It was on the back of that document. Q. And do you know who created this? A. I believe Dr. Nielsen created it. Q. Do you know how he created it? A. I believe what he did as school board members were talking about their issues, he jotted them down and then kept them and distributed them. Q. And there's a note on there under the name Allen Bonsell? A. Yes. Q. Do you see that? A. Yes. Q. Can you please read what it says under number 1 and 2 under Allen Bonsell? A. Creationism number 1. Number 2, prayer. Q. And do you remember him saying that? A. Not at that time, but I do remember him talking about creationism. I remember him talking about creationism, because that spurred me to go to the high school to go talk to administrators about it. Q. And tell me the circumstances under which you went to the high school and talked to administrators about that. A. It was after I heard Allen Bonsell speak about creationism I talked to Bob Hamilton, who at that time was the principal of the high school, and Larry Reading, who was the assistant principal at the high school, and I was expressing my amazement that a school board member would want creationism as part of a biology curriculum. Q. And if you'd just please turn to the first page of 641 again, those notes that you read? A. Yes. Q. Whose handwriting is that? A. That's mine. I'm not proud of that. Q. Now, we're going to move off that exhibit for just a minute now, and I'd like to ask you about a different subject. Did the board approve funds for a biology textbook in 2003? A. Yes. Q. Were you on the board at the time? A. Yes. Q. Did this approval for funding cover any other textbooks? A. Yes. Q. What textbooks did it cover? A. It covered all the textbooks that were going to be bought that were part of the science curriculum, and also family and consumer sciences. Q. Was there any schedule for buying textbooks? A. The now superintendent Richard Nielson, who had been when he was the assistant superintendent had established a 7-year curriculum cycle, which was very beneficial in terms of budgeting I thought. Q. What month of 2003 was it that the funding for the science textbooks was approved? A. June. Q. Now, after that approval for the funding of the science textbooks did the board approve the purchase of a biology textbook? A. No. Q. Did you raise the issue at any time when you were on the board? A. Yes. Q. How did you raise it? A. I repeatedly asked what the status was of purchasing the biology book, and not only the biology book. There were some chemistry books that hadn't been ordered, and there were also some family and consumer science books that hadn't been ordered, and I know at one point, and I believe it was August of that year, I even made this motion myself to approve those books since they had already been approved in the budget, but they died, that motion died for lack of a second. Q. And did anybody on the board tell you why the approval of the purchase of the textbook was not passing? A. No. Q. Did this affect your daughter? A. Yes. Q. What grade was your daughter in at the point? A. My daughter was in 9th grade September of 2003. Q. How did this affect your daughter? A. She didn't have a biology book to take home. There were biology books on the shelf, but they were merely used as reference. It was my understanding that they weren't matching the curriculum, and the teachers were hoping to get their new biology books that they had reviewed and had been approved in the budget. Q. Now, your time on the board I believe you testified was over in November of 2003? A. Yes. Q. Did you raise the issue of the approval of a purchase of a biology textbook after your term on the board expired? A. Yes. Q. And how did you raise it? A. I would approach the school board at a public session during public comments and ask the status of the biology books. Q. How many times did you raise that concern? A. I think altogether when I was on the board and off the board it may have been five or six times. Q. And what happened when you raised it with the board in those cases? A. I would pretty much get a non-answer. Q. Did you attend a meeting of the Dover area school district board of directors on June the 7th, 2004? A. Yes, I did. Q. Why did you go to that meeting? A. It was still, the major area of concern was these books hadn't been approved. I mean, my daughter had already gone through biology and didn't have a biology book. Well, the chemistry books hadn't been approved yet, and she was going to be taking chemistry. I was really going to be upset if she was going to be in a class that didn't have a chemistry book to take home. Q. Now, I'd like you to take a look at what's been marked as P-42 in your notebook. Matt, can you please put it on the screen? Take a look at P-42 and tell us what it is. A. This is the school board planning agenda meeting from June 7th, 2004. Q. I'd like to focus on the language that I'm going to have highlights in bold from P-42. Do you see those words "planning meeting"? A. Yes. Q. What does that mean? A. That means that it's scheduled as a planning meeting, and what the practice of the school board had been, the first meeting of the month typically was a planning session. I mean, there might be an action item, but that would be if there's for instance like an emergency appointment, typically that was the planning meeting. Then the second meeting of the month was the action meeting. Q. I just got a glass of water and you're actually doing more talking than me. Would you like a glass of water? A. Please. Thank you. Q. Now, did you see this agenda at or around June 7th, 2004? We're on P-42, ma'am. A. Yes. Just to make sure, yes. Q. Can you tell us if this agenda shows that the board was scheduled to consider approval of any textbooks? A. Yes. Q. Which textbooks was it scheduled to consider approval of? A. Chemistry, and family and consumer science. Q. What about approval for biology? Was that -- A. No. Q. Did you speak at that meeting? A. Yes. Q. Tell us what you said at that meeting. A. As far as I can remember, when I'm looking at the agenda and I see that well, there were science books, chemistry and family and consumer sciences ready to be approved, but there was no biology books. So I felt that I just had to approach the board one more time and ask them why the biology books were not scheduled for approval. Q. And is that what you said? A. Yes. Q. And do you recall what the board said back to you? A. I do recall that Bill Buckingham said to me, "Well, the biology book is laced with Darwinism." Q. Who is Bill Buckingham? A. Bill Buckingham was a school board member at the time. Q. Did he have responsibility for any particular committee on the board at that time? A. At the time he would have been chair of the curriculum committee. Q. What did you do after Mr. Buckingham made that comment about laced with Darwinism to you? A. I said, "So this is about evolution." Q. Did you say anything else? A. No. Q. And did he say anything else? A. At that time I don't recall that he said anything else. Q. Tell us what happened next. A. I sat down, and there might have been some kind of conversation going on, because I sat down, and as I was sitting down a student who had graduated with my son was sitting at that same table, and he was alarmed by what had just happened, and he said to me, "Mrs. Callahan, would it be okay if I got up to address the school board?" And I said, "I would think so. It's still public comment and, you know, go ahead." And he did then approach the school board. Q. And what did he say? A. He started questioning them, he explained actually that he was a biology major at Penn State, and he started to explain to them how important evolution is to a biology curriculum. And as he was explaining things to them, several of the board members were talking back to him. So it was an exchange. Q. What did they say back to him? A. They said that, "Well, okay, fine, evolution, but we need to teach creationism." They were pretty much down playing evolution as something that's credible. Bill Buckingham talked about creationism. Allen Bonsell talked about creationism. And as it went back and forth, at one point I thought Max was doing a really good job. He was staying calm and he was just repeatedly trying to explain to them what the meaning of biology was, what the meaning of evolution was, and he was getting this bantering back and forth. So at one point Bill Buckingham seemed to be getting pretty frustrated, and he said, "Well, you're a perfect example of what happens to students when they go to college. They get brainwashed." Q. Do you remember anything else that was said in that exchange between the board and this student? A. I also remember Noah Renwick explaining what a scientific theory was, and he explained that a scientific theory becomes a theory by repetition. In other words, if you just keep repeating it and repeating it and repeating it, whatever it is, that's how science becomes a theory. Q. I'm not sure if I asked you, can you tell us the name of this student? A. Oh, Max Pell. Q. When you say he was a student, he was a college student? A. He was a college student, yes. Q. What was his demeanor during this exchange? A. He stayed calm. I was really impressed how he was handling himself. I mean, he was a young man and these were adults kind of theatering him. They were rude at times I thought. Q. Now, do you recall Mr. Buckingham showing Mr. Pell a picture at any time during that exchange? A. Yes. Q. Tell us what you remember. A. I remember Mr. Buckingham stood up and went over to Allen Bonsell and showed him what appeared to be a picture and whispered something, there was a little exchange between the two of them, and then sat back down and started talking about this picture to Max. Q. And what did he say? A. He said something to the effect of, "you Can't expect me to believe that I was ever descended from apes and monkeys." Q. Do you recall anything else that happened at that board meeting? A. No. Q. Do you read a local paper? A. Yes. Q. Which paper? A. We receive the York Dispatch at our home, and any time there's a Dover issue I make sure I get the Daily Record. Q. Were you in the practice of reading the news, the local papers at that time? A. Yes. Q. Now, I'd like to show you what's been marked as P-44. Do you have that in front of you? A. Yes. Q. Can you tell us what it is? A. It's from the York Dispatch, June 8th. It's an article. Q. Who's the author? A. The author is Heidi Bubb. Q. Have you read that before now? A. Yes. Q. When did you read it? A. I know I read it within the last couple of days. Q. Did you read it at or around that time? A. Yes. Q. Now, I'd like you to look at that and tell us if that helps you remember anything else that happened at the meeting. A. Well, yes. I mean, then it became apparent that they were still going to be looking at a book that teachers and board members could approve, but it gave me a sense that they were still going to continue looking for a book that had creationism in it. Q. Does it help you remember anything else that happened at the meeting on June 7th of 2004? A. Yes, because when Max started talking about the issue that he was concerned that religion was going to be in the biology class, Bill Buckingham made it perfectly clear that he thought the idea of separation of church and state to be mythical. Q. Do you remember anything, does looking at this Exhibit P-44 help you remember anything else that was said at that meeting? MR. GILLEN: Excuse me, Your Honor. Just to the extent that the witness is testifying from memory, memory is one thing, but reading from the article is another. I'd request that she not read from the article as evidence of -- THE COURT: I think the objection is well founded. What you're being asked to do is look at the article and to see whether or not it refreshes your recollection as to what happened at the meeting, and you can do that. But you shouldn't refer to the article in your answer. That's inappropriate for you to do that. So if you want to take a moment and read the article, we'll give you the opportunity to do that. Or if you want to take a moment as you get asked the question you can read the article, but you must answer from your own memory. Don't recite something that you're reading from the article. THE WITNESS: All right. THE COURT: It's your memory that controls. If it's refreshed it is. If it's not, fair enough. THE WITNESS: Thank you. But I do remember when Max was showing his concern about religion as part of the biology curriculum that Bill Buckingham, you know, in an exasperated tone did say, "You know, hey, the separation of church and state is just a myth." MR. HARVEY: Do you remember anything else about that? MR. GILLEN: Your Honor, I don't want to belabor the process and I want to be fair to both parties, but it's not appropriate when the witness is asked whether she remembers for her to look at that, at the article first. She should first say she doesn't remember, and then if she doesn't and she wants to look, I understand. MR. HARVEY: Your Honor, I think I've established that the witness doesn't remember anything else, and I just want her -- THE COURT: Well, I understand Mr. Gillen's objection. It's not an inappropriate objection under the circumstances. How long is the article? THE WITNESS: I think that was it. I don't remember anything else. The last thing I remembered when I looked at the part of the separation of church and state was when Bill was so exasperated about it at that meeting. THE COURT: Then I think the answer is no to the question, and Mr. Gillen, no harm, no foul, and we can move on. MR. GILLEN: Fair enough. BY MR. HARVEY: Q. Now, I'd like you to turn to what has been marked as P-46, please, and can you tell us what is that? A. This is a June 9th newspaper article from the York Daily Record. Q. Who's the author? A. Joseph Maldonado. Q. Did you read this article at or around that time? A. Yes. Q. Have you reviewed it more recently? A. Yes. Q. And by looking at this article, does this help you remember anything else that happened at the meeting that you aren't already told us about? (Brief pause.) A. I don't think so, except that there was an ongoing mention of that it's really important for fairness and balance, therefore creationism needed to be taught along with evolution. Q. Now, after that meeting, or shortly after that meeting I should say, did you have a conversation with Mr. Bacsa about looking for a textbook? A. Yes, I did. Q. Who is Mr. Bacsa? A. Mr. Bacsa is the assistant superintendent of the Dover area school district. Q. Tell us what you can recall of that conversation with him. A. What I can recall, and I was in the administrative office area and I was saying to him, "Well, Allen Bonsell at least has finally said publicly that he's interested in creationism being part of the school district," and Mr. Bacsa said to me, "Well, I don't think you'll have to worry because they'll never find a book that includes evolution and creationism in it." Q. Did you attend any other -- did you know that there was a school board meeting scheduled for June 14th? A. Yes. Q. Did you attend that meeting? A. No. Q. Why not? A. Because I was out of town. Q. Did you attend any other board meetings that summer? A. No. Q. Why not? A. I was out of town. Q. And did you follow issues relating to those biology texts? A. Yes. Q. How did you do that? A. My husband would bring the newspapers to me. Q. And did you, in September did you attend any meetings of the Dover area school district board of directors? A. Yes. Q. Do you remember a meeting on September the 7th of 2004? A. Yes. Q. And did you attend that meeting? A. Yes. Q. Tell us what you remember about happening at that meeting. A. I remember approaching the school board during public comments, and I spoke briefly about the book "Of Pandas and People," because at that time I had read it and I was very concerned about the book being considered at all as a reference book, and because I was so concerned, and I guess at the time there's certain, there had been a lot of comment about the book, I was encouraging Allen Bonsell to follow past practice of the board, which is to allow public comment or to have a planning meeting the first meeting of the month and an action meeting the second meeting of the month, so whatever action the school board was planning to take on this issue there would be plenty of time for the faculty and the community and even board members to find out about as much as they could about whatever they were going to decide to do. Q. Why did you raise that issue? A. Why? Q. Yes. A. Well, because I was really concerned about this book being part of the biology curriculum. Q. Do you remember anything else that happened at the meeting on September the 7th? A. On September 7th? Is that what you said? Q. Yes. A. No, only that I basically didn't get an answer from Allen when I was trying to have him make a commitment that yes, he would strive to follow past practice. Q. Now, I'd like to ask you to look at what's been marked as Plaintiff's Exhibit 679. Can you tell us what that is? A. It's a news article on September 8th from the York Daily Record. Q. And who's the author? A. Lori Lebo. Q. Does looking at that article help you remember anything else that happened at the board meeting on September the 7th, 2004? (Brief pause.) A. I mean, I remember saying that to Lori that this is just one more embarrassment for Dover, because I really was appalled by that book "Of Pandas and People." Q. Anything else you recall from that meeting after reviewing that article? A. No. Q. Do you remember a meeting on September the 13th of 2004? A. Yes. Q. And did you speak to the board on that occasion? A. Yes. Q. Do you remember what you said? A. I remember I wrote out a statement with what I wanted to say, because I really wanted to try to make an impression on the board of how inappropriate I thought the course of action they looked like they were taking was. Q. Did you save your notes on that statement? A. Yes. Q. Please turn to what's been marked as P-668. I'm not going to ask you to look at all of this. It's a series of, a collection of handwritten note, and I'd just like to ask you to turn to page 1033 in that document. It's actually the last page of the document. A. Okay. Thank you. Q. Are you at that page? A. I am. Q. Can you tell us what that is? A. These are the notes, or the written statement I brought with me to that September meeting to read to the school board. Q. And looking at that, does that help you remember what you said to the board on September the 13th of 2004? A. Yes. Q. Please tell us what you said. A. May I read it, or do you want me to -- MR. GILLEN: No, Your Honor. I mean, she may not read the statement. If she can remember, that's fine. But it is hearsay. THE COURT: What counsel is attempting to have you do is to have you look at that to refresh your recollection as to what you said. You don't have to recite it verbatim. If it refreshes your recollection you can, with your recollection refreshed you can paraphrase or summarize if that refreshes your recollection what you said at the school board meeting. But you shouldn't read it from the note. THE WITNESS: So do you need me to read the entire thing first and then say what I said, or may I look at it and comment -- THE COURT: You certainly may have all the time you need to take a look at it, and if it refreshes your recollection then you can answer the question as to what it is that you said. This is not a test to have you recite it verbatim. If it refreshes your recollection then you can summarize or answer the question, but Mr. Gillen's objection is that you cannot read the note into evidence. That's quite right. So if you do it for that purpose, that's appropriate. THE WITNESS: Okay. Thank you. THE COURT: And while she's doing that let me ask counsel, it looks like you're going to be in with this witness for a while. MR. HARVEY: Yes, Your Honor. THE COURT: While don't we cover this question and then we'll break for lunch, or if you have several questions in this area, why don't you finish this area as to what you said at the meeting and then -- MR. HARVEY: I was, I was just going to ask her this question, ask her to tell us what she can remember saying, and I believe, Your Honor, that that does come in as a past recollection recorded, so that she could read the statement. And if she remembers reading the statement I believe she could read it. MR. GILLEN: Your Honor, she's testified that these are notes of the statement she was going to make. I think that by any reasonable measure that's not recollection recorded. It's something she believes that she took with her to the meeting. THE COURT: We could debate the finer points of what is past recollection recorded and we might not resolve it, but we're going to get a summary of the statement I suspect after she reads it. So I'll choose not to do that. MR. GILLEN: And I wouldn't deprive the witness of a recollection. THE COURT: All right. So we won't go to the more, to the finer points of past recollection recorded. We'll use the reference. THE WITNESS: I absolutely remember reading this statement at the school board meeting. MR. HARVEY: And would you please read it for us? I'm sorry, Your Honor, Mr. Rothschild had spoken to me when you last spoke, and I didn't hear your last comment. THE COURT: It's always a problem when you have co-counsel. MR. HARVEY: I know, I know, and I'll talk to him about that over lunch, Your Honor. THE COURT: Mr. Rothschild goes to the penalty box. You can restate the question. BY MR. HARVEY: Q. That document that you're looking at that has the Bates number P-01033 on the bottom, can you tell us what that is? A. This is a document, this is a copy of the papers that I brought with me that I read at the school board meeting. Q. And did you read that verbatim? A. I read it verbatim. Q. Would you please read that for us? A. I have -- MR. GILLEN: Your Honor? THE COURT: No, it's not, we're not going to read the statement in. So that my ruling is clear, I don't view it -- if you want to break here and we want to debate this and you want to give me some time and you want to do it that way, I don't see it as necessarily past recollection recorded for the argument that Mr. Gillen made. However, we can do this two ways. We can break here, hold the thought, I'll come back and I'll rule, or alternatively you can have it refresh her recollection and she can having had the recollection refreshed testify as to generally what she said. In other words paraphrase or summarize what she said, your choice. BY MR. HARVEY: Q. I'd be happy for you to summarize what you said at that meeting based on your review of the statement now. A. The first thing that I did say is that the book was absolutely not appropriate for 9th grade. I then said that the book claimed to refute scientific biological origins, but I thought it was absolutely religiously based. And the third thing I said was that I urged the school board to really consider this strongly and to remember the oath of offices they took that they were sworn in as school board members, because I thought that this could lead to an expensive and protracted lawsuit and it would be harmful to the students and the district. Q. Do you remember anything else you said? And you can look at it again. A. Oh, I remember mentioning also that this had absolutely nothing to do with balance and fairness, but that it was merely introducing religion into the biology curriculum, and to pretend otherwise was pretty preposterous. MR. HARVEY: Thank you, Your Honor. I have no further -- I mean, I have more questions. THE COURT: For the witness. MR. HARVEY: But on this line of questioning I'm done, Your Honor. THE COURT: Okay. That will mark an appropriate time to break for lunch. We will break until approximately 1:45. We'll reconvene at that time for our afternoon session. We'll continue with this witness at that time. (End of Volume 1 at 12:23 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 2 (September 27), PM Session, Part 1 THE COURT: All right. We'll continue then with this witness on direct. (Whereupon, ARALENE CALLAHAN, resumed the witness stand.) DIRECT EXAMINATION (CONTINUED) BY MR. HARVEY: Q. Mrs. Callahan, did you attend a meeting of the Dover Area School District Board of Directors on or about October the 4th, 2004? A. Yes, I did. Q. I'd like you to take a look at what has been marked as Plaintiff's Exhibit 78 in the binder before you. Have you had a chance to look at it? A. Yes. Q. Can you tell me what it is? A. It's the planning meeting agenda for Monday, October 4th. Q. And can you please tell me whether there's anything on the agenda for the meeting about a change to the biology curriculum? A. No. Q. Is there anything there under curriculum at all? A. Yes, there is an FYI from Dr. Nilsen. Q. Are you looking at page 1 of the page that has the base number 135? A. Yes. Q. Please tell us what it says there about, under curriculum? A. It says, the superintendent has approved the donation of two classroom sets, 25 each, Of Pandas and People. The classroom sets will be used as references and will be made available to all students. Q. Now I'd like to ask whether you attended the meeting of the board on October the 18th, 2004? A. Yes. Q. And why did you attend that meeting? A. Because I was concerned about the curriculum change that I knew was supposed to happen on October 18th, not for anything that was on the planning meeting, but because Mike Baksa had given me a sheet of paper with potential curriculum changes on it because I was a member of the district curriculum committee. And that was a few days before the October 18th meeting. Q. Please take a look at what's been marked and is in your notebook as Plaintiff's Exhibit 87. Do you have that in front of you? A. Yes. Q. What is it? A. That's the agenda for the board meeting of October 18th, 2004. Q. Now please tell us what's listed on that agenda under curriculum? A. Under the heading of curriculum is the addendum. Q. What does it say? A. It says, to approve changes to the biology I, grade 9 planned course curriculum guide for the 2004-2005 school year. In the background information, copies of the changes have been sent to the district curriculum advisory council and the science department. Q. Was this curriculum change on the planning meeting agenda? A. No, and that's why it's in bold print and it's an addendum item, to indicate it was not part of the planning meeting. Q. Was this a concern to you at the time? A. Yes. Q. Why? A. Because -- I mean, I really thought it was always an important practice to have items brought up at a planning meeting so there would be enough time for the faculty and community members to respond to anything that was going to be changed. And, I mean, this was even bigger because there certainly had been a lot of attention to it. There were a lot of people who had a tremendous amount of problems with -- well, what end up happening and what was happening in the district at the time. Q. Now there's a reference there to the district curriculum advisory council. Do you see that? A. Yes. Q. And do you know what that is? A. Yes, that's a committee that's made up of board members, administrators, faculty, and community members. Q. And were you on that committee at that time? A. Yes. Q. Were you on that as a board member or as a parent? A. As a parent. Q. And did you receive a copy of the changes as referred to in the curriculum -- excuse me, the agenda? A. Yes, a few days before the meeting. Q. How did you receive that? A. I don't remember if they were mailed to me or if Mike Baksa handed them to me at some point. Q. Was a meeting held of that committee? A. No. Q. Did you respond in any way to receiving that proposed curriculum change? A. Yes. It was verbal, but I said to Mike Baksa, I am formally making a request that this change be turned over to the district curriculum committee because it's the district curriculum committee that reviews changes in curriculum and gives it approval for those changes. Q. Did you speak at the meeting on October 18th? A. Yes. Q. Can you remember what you said, and please tell us? A. I know I spoke about urging, strongly urging the board to return this change, potential change to the district curriculum committee so it could be reviewed. And also, I thought it was important to give the public time to respond to it, like I had said before. I also -- I know I read a paragraph from the book Of Pandas and People, and I asked the board at that time if the paragraph that I read was still accurate. And the reason I wanted to know that was because that particular paragraph that I read had been footnoted from 1977 and -- 1977 is pretty old in a science book, and I wanted to make the point that virtually all the footnotes seemed to be 20 or 30 years old. And I think anybody who's familiar with science realizes that when you publish a science book, you run the risk of the day it's out, that it's going to be outdated. And the thought of -- I mean, that was just one example that I wanted to drive home to the school board, that you couldn't possibly consider this a valid science reference book when you had so many footnotes that were 20 and 30 years old. I then -- I had with me many comments from scientists regarding the book Of Pandas and People, and I went down and I read just a few of them. But I did inform them there were certainly many more, and I could go on and on, that I had not found any scientist who considered this worthy of being called a scientific reference book. I might have said some other things, but I don't remember. Q. Do you remember if you said anything about you being on the district curriculum committee? A. Yes, because that's, you know, part of the reason that I was on the district curriculum committee, and I was urging it because I knew the practices of the district curriculum committee, and changes that happened within the district concerning curriculum went through that committee. Q. What did you tell the board about that on October the 18th? A. That I thought they were bypassing a step that had been past practice, and I really felt like it was starting to look like they were just railroading this through the district, and they actually didn't want any input from any scientists or science -- scientists or any of the science teachers or even any of the community members at that point. Q. Do you remember anything else you said at that meeting? A. No. I might have said something else. I don't remember. Q. Do you remember what else happened at the meeting? A. I know. Also during public comment, there were quite a number of community members who stood up and spoke. They spoke about the legal issues. They spoke about their concerns for the science behind the book Of Pandas and People and also this curriculum change. There were maybe a dozen people who spoke, all of them very, very concerned about this book being introduced and this curriculum change. And I do believe there was one person who did speak in favor of it. Q. Do you recall any discussion among the board members about their reason for making the curriculum change? A. No, because people did ask about that. I mean, I know there was one person -- there could have even been several people who asked about the scientific method behind intelligent design, and there was no answer to that. There were never -- most of the questions or the concerns that anybody brought up were really not responded to by the board. Q. Do you remember board member Heather Geesey saying anything at that meeting? A. I do remember Heather Geesey saying that they should be fired. Q. And what was your understanding at the time of what she was talking about? A. That she thought the teachers should be fired if they didn't follow the direction of the board. Q. Now do you remember there was some voting at the meeting? A. Yes. Q. Do you remember the outcome of that? A. That's the vote was made to make the change in the curriculum. Q. Did you attend the meeting of, the next meeting of the board which, I believe, was on November the 1st? A. Yes. Q. Why did you attend that meeting? A. In between that October 18th meeting and the November 1st meeting -- excuse me. I asked if I could listen to the tapes of the October 18th meeting. And I was told only board members were permitted to listen to those tapes. So, again, I addressed the board in public comment saying I was concerned that I was not given the opportunity to listen to this tape. I thought that they were a public record that should be accessible to people in the public, and I believed that it was a violation of the freedom of information law. Q. And did anyone -- you said that at the board meeting? A. Yes. Q. And you said that you had made a request prior to the board meeting -- A. Yes. Q. -- to listen to the tape. Who did you make that request to? A. I believe I talked to Karen Holtzapple. Q. Who's Karen Karen Holtzapple? A. She's the secretary to the business manager. Q. What was the policy about listening to tapes when you were a member of the board? A. I know my experience had been with the tapes that we were open about people in the public listening to those tapes. I had been with people when they had listened to the tapes. I mean, one person I remember in particular. Q. Do you know whether the board had a policy about retaining tapes when you were a member of the board? A. I know certainly at the beginning -- when I was first on the board, I mean the tapes were destroyed shortly after the minutes were taken. And then there was a discussion at one of the board meetings -- this was several years ago -- where board members were saying, you know, why can't we keep these tapes maybe six months to a year? I don't remember if the board took a vote about that. But I was left with the impression that the tapes were going to be kept six months to a year. The problem before has always been that there's not a lot of space in the district office, so that space was a consideration. But I certainly walked away from that meeting thinking those tapes are going to be kept six months to a year. Q. Do you remember at the board meeting on November the 1st whether Alan Bonsell said anything about the tapes or tape of the October 18th meeting? A. I do remember Alan Bonsell saying something to the effect, well, of course, we would destroy the tapes. We might be involved in a legal matter. Q. Do you remember anything else that was said on that meeting of November the 1st, 2004? A. No. Q. Do you remember Noel Weinrich saying anything? A. Not that I can -- I mean, that might have been the meeting that he got really upset and left the meeting because he was -- that might have been the meeting that he got really, really angry and because apparently Bill Buckingham had said something about his patriotism and his religious faith, and it had something to do with, you know, his religion is between his God and himself. Q. Please turn to Exhibit, Plaintiff's Exhibit 669. Do you have that in front of you? A. I do. Q. Have you seen it before? A. Yes. Q. What is it? A. It's an article by Joseph Maldonado from the York Daily Record dated November 2nd, 2004. Q. Did you read it on or about that time? A. Yes. Q. Now I'd like you to look at that and tell us whether -- read it first, please. And when you're done reading it, just put it down for a second, and then tell us if it helps you remember anything else that happened at that meeting. A. Yes, I do remember a few more things after seeing this. Q. Please tell us what you remember. A. I do remember Casey Brown making the suggestion that certainly this would be appropriate in a world religion class. I don't remember exactly what she said. Or something like that. And I remember Larry Schnook asking who had donated the books. I also remembered something else that I now forgot. Q. You can look at it again. A. I'm sorry. Oh, Brian Rehm also asked about listening to the tapes. Q. Now if you would please turn from that exhibit to what has been marked as Plaintiff's Exhibit 127. Do you have that in front of you? A. Yes. Q. What is that? A. That's the district newsletter that was sent to the households in Dover. Q. Did you receive a copy of that? A. Yes. Q. How did you receive that? A. In the mail. Q. Now Mrs. Callahan, I just want to ask you a couple other questions. Do you believe the actions of the Dover Area School District Board of Directors have caused you harm? A. Yes. Q. How? A. I think in several ways. First was that my daughter, in 9th grade, did not have a biology textbook to take home because there were board members looking for textbooks that included Darwinism or included creationism. Secondly, I had seen an e-mail from a professor in Texas that warned that, if Dover continued on this path of including intelligent design in their biology curriculum, he would have a hard time considering Dover students into his program, which made me think, okay, if that's in Texas, what about some of the very competitive schools in our area? What would they consider? You know, would students about to graduate have a more difficult time getting accepted in those colleges? Another area that I think it is extremely harmful to all the students, I mean, not just my daughter, but all the students who are attending the high school. I think it's clearly an attempt to change the definition of science. One, by introducing intelligent design, saying that is a scientific theory, but also by demeaning, if you will, the theory of evolution. When you introduce -- so there's students that will be graduating from Dover not having a clear understanding of what science really is. And then when you introduce intelligent design into the biology curriculum, it says, okay, it's so complex at this point, it's an intelligent designer. Well, that really stops a student from thinking more about that subject. I mean, I think it's really absurd to think that a school district could hinder a student's natural curiosity into researching an area further. And then the area also that's important is intelligent design is clearly religious. It's not my religion. I am very upset about the idea of a public school trying to influence my daughter's religious beliefs. And that probably is the most harmful. MR. HARVEY: I have no further questions. THE COURT: All right. Thank you, Mr. Harvey. Mr. Gillen, cross-examine. MR. GILLEN: Thank you, Your Honor. CROSS EXAMINATION BY MR. GILLEN: Q. Good afternoon, Mrs. Callahan. A. Good afternoon. Q. Pat Gillen. We met at your deposition. A. Yes. Q. I'm going to ask you a few questions today. Mrs. Callahan, you've testified that you had attended a board retreat for Dover Area School District in January of 2002, correct? A. Yes. Q. But you don't remember anything from that particular board retreat? A. I can't remember anything specifically about that board retreat. Q. You attended a board retreat in March, March 26th, 2003, correct? A. Yes. Q. These retreats were not deliberations made -- well, they weren't for the purpose of deliberating on district policy, is that correct? A. That's correct. Q. No votes were taken? A. I'm sorry. I'm having trouble hearing you. I'm sorry. Q. That's quite all right. No votes were taken? A. Right. Q. They were not official meetings of the school board? A. No. Q. Now you've testified that there was a portion of that board retreat on March 26th, 2003, where Richard Nilsen invited comments from the Board members? A. Yes. Q. And he solicited issues that might be of interest to the Board members, correct? A. I'm sorry. Q. He solicited input from the Board members about issues that might be of interest to them, is that correct? A. Yes, the board members knew to bring their issues or concerns to that board retreat. Q. And that go-around session took about two minutes, correct? A. Possibly. I remember that the administrators were each given three minutes. They took a little longer. Q. All right. But the go-around session from the board members was about two minutes? A. Probably. Q. Okay. I believe you've testified in deposition that you don't recall any comments that were made concerning the issues raised by Alan Bonsell at that March 26th, 2003, retreat? A. No, I do remember comments Alan Bonsell made at the March 26th, 2003, meeting. Q. Yes. Forgive me if my question was not precise. You don't remember other board members discussing the issues he raised? A. No. Q. I believe you've also testified that you don't remember any discussions that you had with Alan Bonsell about creationism in 2003? A. Correct. Q. You don't remember any mention of creationism at public meetings in 2003? A. Correct. Q. You don't recall Alan Bonsell doing anything to implement any desire to have creationism taught during 2003? A. Not to my knowledge. Q. I think you've testified that you have a Bachelor's of Science? A. Yes. Q. Okay. Now if I'm correct, you were not re-elected in 2003, correct? A. Correct. Q. Is it true that several persons who ran for office in 2003 are currently on the Board? A. I think so. Q. Okay. Now you've testified that the purchase of the biology textbook was not approved in 2003, correct? A. The approval to purchase the book was not in 2003, is that what you said? Q. Yes. A. Yes. Q. Okay. And you said that you made a motion for the purchase of the biology textbook? A. All of those textbooks in August of 2003. Q. Well said. You say that that motion died for lack of a second? A. Yes. Q. At the time you made that motion, Casey Brown was on the Board, correct? A. Yes. Q. And Jeff Brown was on the board, correct? A. Yes. Q. And Angie Yingling was on the Board, correct? A. Yes. Q. They did not second your motion? A. No one seconded the motion that I recalled. I don't recall any vote being taken. My memory is, it just died for lack of second. Q. That's fine. Do you recall expressions of fiscal concerns surrounding the purchase of textbooks in 2003? A. No. Q. Do you recall -- can you say there were none? A. I can't say that there were none. I know that I don't recall any conversation about that because, subsequent to that time, I believe it was Dr. Nilsen, and I believe it was $50,000.00 was the amount that was allocated for the purchase of those books was set, put in a separate fund, so that if the books weren't approved in that current fiscal year, at least the money that had already been approved could be used in a subsequent year, and that might help not -- that might help the curriculum cycle from not getting really messed up. Q. Okay. So money was put aside, escrowed, I believe is the term you used in your deposition? A. Okay, thank you. Q. For the purchase of biology books? A. Yeah, and chemistry and the family consumer sciences. Q. Do you recall a discussion that the books being used for the instruction of biology in 2003 weren't current? A. I don't remember a discussion. I mean, I don't remember a discussion about it, no. Q. Okay. You've testified that the books didn't match the curriculum, correct? A. That's what was my understanding, that the books -- that there had been a curriculum change because of standards, and I think maybe what was now being taught in the middle school, it changed to the high school, that it didn't match the curriculum was my understanding as to why, at least in part, why the science department was recommending a more current science book. And it's been repeated and repeated and repeated. It's always good to have a more current science book. Q. And the change in standards that were reference is the change in the Pennsylvania academic standards? A. I believe so. Q. Now you've testified that you attended the first board meeting in June of 2004, correct? A. The June 7th meeting? Q. Yes. A. Yes. Q. And at that time, you asked why the text had not been purchased? A. Why they weren't on the agenda when the chemistry books and the family consumer science books were on the agenda to be approved at the next meeting. Q. Okay. And I believe you testified you recall some comments by Bill Buckingham? A. Yes. Q. Do you recall any comments by Sheila Harkin? A. No. Q. Any comments by Jane Cleaver? A. No. Q. Any comments by Angie Yingling? A. No. Q. I believe you testified that you didn't attend a second board meeting in June, you were out of town? A. Yes. Q. And you came back in August, correct? A. Right before school started, when that was. Q. Okay. And by that time, the textbook had been purchased, correct? A. Yes, it's my understanding that the textbook had been purchased at that time. Q. Now you've testified that you informed the Dover Area School District School Board that your research had not uncovered any credible science -- scientist who were willing to vouch for intelligent design theory, is that correct? A. Well, I didn't exactly do research, but I had not seen any credible scientists who had confirmed that Pandas and People book. Q. Good enough. So when you made that statement to the Board, it was based on your personal reading, correct? A. My personal reading and also information that had been sent to me. I mean, it was primarily from information that had been sent to me. I don't recall reading anything on my own about the critiques Of Pandas and People. Q. Okay. And I think you've testified, you had the sense that the Board ignored you? A. Excuse me? Q. You had the sense that the Board ignored you, is that correct? A. Yes. Q. Did you ever ask them why they might be doing that? A. No. Q. Do you recall commenting that the Board had spent public money on legal fees in connection with the curriculum issue? A. Yes, I may have mentioned that it was my understanding that they had already spent $900.00 looking into this, and because it was my thought at that time, $900.00 can be a significant amount of money when you're cuttings things from the budget. Q. You said that you were on the district curriculum advisory committee in 2004? A. Yes. Q. And you received communications from Mike Baksa regarding the contemplated curriculum change? A. Yes. Q. Based on your personal reading, you've testified that you do not believe that intelligent design theory is a scientific theory, correct? A. Yes. Q. Did you ever ask other board members about whatever reading they did? A. I know at one of the Board members -- board meetings, I did distribute at least the first part -- it was a copy of the first part of the National Geographic article that came out about a year ago, and it had the definition of theory in it. I did distribute that to all board members because I was thinking, you know, maybe the problem was that the school board members just really didn't understand the scientific definition of the word theory. And also at one of those meetings, now that you're asking me, I'm remembering that I had a copy of an article from the -- a New York Times Sunday magazine. I think it was the Genesis Project was the name of that article. And it talked about all -- a lot of the scientific discovery behind origins of life. I mean, I can go a little bit into that, if you would like, what they were referring to. If you'd like me to, I can. Q. No, that's all right. That's fine. I know that you did some reading and you brought some reading to the attention of the Board. That's fine. Do you object to the book of Pandas being in the library? A. No. Q. If I'm correct, no child of yours has actually attended a biology class at which the statement was read, is that correct? A. That's correct. Q. I believe you've testified that you don't recall Mr. Buckingham making any statement that this country wasn't founded on Muslim beliefs or evolution? A. I know I don't recall him saying anything about the Muslim beliefs part. Q. There's been at least one occasion in which you personally have called a reporter and asked for a retraction, is that correct? A. Yes. Q. Mrs. Callahan, it's your belief, based on what you know, that intelligent design is religion, correct? A. Yes. Q. Do you still have your book of exhibits in front of you? A. The ones that -- Q. Yes. A. Yes. Q. Mrs. Callahan, I ask you to look at Exhibit 679, which was shown to you earlier today. Would you look that over, please? If you look at that article, Mrs. Callahan, you'll see that it attributes a statement to Bill Buckingham which says, board members are still fine tuning matters, including any potential legal issues that might arise from using Pandas in the classroom. Do you see that? A. Yes. Q. Have you looked at that? A. Pardon me? Q. Have you looked at that? Do you remember Mr. Buckingham saying that at that -- on or about September 8th, 2004? A. I do recall him saying something about fine tuning. Q. Do you recall him saying anything about consulting legal counsel? A. No. Q. But you can't say he didn't say that? A. Oh, no, I can't say he didn't say that. MR. GILLEN: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Gillen. Mr. Harvey, any redirect? MR. HARVEY: No redirect, Your Honor. THE COURT: All right. Ma'am, thank you. You may step down. And let's take the exhibits that we have for this witness. MR. HARVEY: Your Honor, P-641. THE COURT: All right. 641 is the exhibit that had to do with the retreat information, I guess, with the inner lineations in her handwriting, is that correct? MR. HARVEY: With the exception of the handwriting, Your Honor -- oh, yes, that's correct. Yes, we move that entire exhibit into evident. THE COURT: Any objection? MR. GILLEN: No objection, Your Honor. THE COURT: All right. 641 is admitted. P-42, I have next, is the June 7th, 2004, planning meeting agenda. Are you moving for the admission of P-42? MR. HARVEY: We are moving for the admission of that, Your Honor. MR. GILLEN: I object, Your Honor. There are handwritten notations which have no foundation. THE COURT: All right. Let's look at 42. MR. HARVEY: Your Honor, we're not moving for admission on the handwritten notation, just the exhibit on -- THE COURT: Now wait. MR. HARVEY: We're not moving for admission of the handwriting, just the exhibit itself. THE COURT: Well, isn't the handwriting on the exhibit? MR. HARVEY: Your Honor, it is -- the handwriting is on the exhibits. It wasn't this witness's handwriting. And so I did not authenticate it or ask her to look at it. THE COURT: Well, that's the problem, unless you want to redact it. MR. HARVEY: I'm perfectly willing to redact it. MR. GILLEN: From my part, Your Honor, I believe that we have in evidence between us a clean copy of the official document, which is the planning meeting agenda for June 7th, 2004. I have no objection to admission of that document without handwritten notations. THE COURT: All right. Well, somehow you're going to have to redact 42 so that it becomes a clean copy. We'll call it P-42. So it will come in as P-42 without the handwriting. So that's admitted. All right now. P-44, P-46, and P-679 respectively are the June 8th, June 9th, and September 8th, 2004, records -- I'm sorry, articles from the York newspapers. Now I don't know if you want to move them in. MR. HARVEY: We do want to move them in. THE COURT: You're doomed to fail if you do at this point. MR. HARVEY: Actually, we don't intend to move them in for the truth of the matter asserted right now. We intend to move them in. This witness testified she read them, so we would move them in, not for the truth of the matter asserted, but we do reserve the right to move them in for that purpose later in the proceeding. MR. GILLEN: No legitimate purpose has been given for admission of the exhibit. THE COURT: No, I won't admit them at this point. I won't deny you the opportunity to go back and do it. I see no purpose of admitting them, particularly in a bench trial, at this point. So I will not admit those. They were properly used to refresh her recollection. Talk to co-counsel. MR. HARVEY: I actually don't need to talk to co-counsel. We're not -- she testified that she -- THE COURT: Are you sure? MR. HARVEY: I'm quite sure. She testified that she read these at the time. One of the issues in this case is the harm that's been sustained by these Plaintiffs. That goes to her knowledge of what happened. She read them. And it's all part of background knowledge, and that's why I say we're not offering them for the truth of the matter asserted. There's going to be other witnesses who are going to testify. THE COURT: I understand that. But what Mr. Gillen is obviously doing is, he's protecting the record because there is an issue as to the truth of the matter asserted in the articles, and how do you unring the bell on the articles? MR. HARVEY: Well, the Court has seen -- the finder of fact has seen the articles because we referred to them in the testimony. In other words, there's no way to unring the bell necessarily, but -- THE COURT: That's my job. MR. HARVEY: That's your job, exactly. They're not being offered for the truth of the matter asserted. THE COURT: You can unring this bell. I don't know how else we do it. Mr. Gillen, what did you want to say? MR. GILLEN: The law observes a distinction between what's shown and what's admitted. THE COURT: I have to agree with Mr. Gillen as to that. I'll revisit the articles. You know, I gave you latitude in allowing you to have her refer to them. If you have a better argument than that, I'll hear it. MR. HARVEY: I have only one other argument, Your Honor. THE COURT: I was going to say, if you don't want to assert it now, I'll hear it later. MR. HARVEY: I think I'll let you know. That is that, we're offering them for the effect on the community. One of the issues in this case is endorsement of religion, and these were published to the Dover community, and there will be testimony that they were seen by others. And I think they are relevant for that purpose. Again, that's not a hearsay purpose. THE COURT: Well, as we know, there remains an issue as to whether or not you're going to be able to have testimony by the reporters who you've called as fact witnesses. I think the testimony of those reporters could allow the articles to be admissible under the residual exception in Rule 807. We're not there yet. So rather than chew this up at this point, that's why I say, I'm not going to admit them on the effect prong under Lemon at this point, but I'll -- we'll revisit that if and when that's what you're left with. Now you may not be left with that, depending on what you get. Based on what I'm hearing, I don't know. I want to talk to counsel at the break about that issue. But that's another issue altogether. All right. So we'll not admit them at this time, but without prejudice to reassert that argument. I'll rely on you to to reassert the argument unless and until you have some other mechanism to get them in under 807. All right. That leaves then P-668, which is the notes and statement, which I assume you're not moving that in. MR. HARVEY: I am not moving that into evidence. THE COURT: All right. P-78 is the October 4, 2004, planning meeting agenda. Any objection to that? MR. GILLEN: If you'll forgive me, Your Honor. Let me take a look at it. THE COURT: Likewise, P-87, you can check that, is the October 18th, 2004, board meeting agenda. MR. GILLEN: Your Honor, we have no objection to the admission of P-78. THE COURT: How about 87 then? MR. GILLEN: Your Honor, we have no objection to P-87. THE COURT: All right. P-78 and P-87 are admitted. Finally, I have, subject to Mr. Harvey, if I didn't get everything, I have P-669, which is likewise the article. I would intend to rule the same way. MR. HARVEY: Understood. THE COURT: As to the York Daily Record, November 2, 2004, article that makes up P-669. Again, without prejudice, we'll not admit it at this time, but we'll allow counsel to argue that point later. MR. HARVEY: Understood, Your Honor. THE COURT: All right. MR. HARVEY: I don't believe we addressed P-127, which I used with Ms. Kitzmiller. THE COURT: P-127 is? MR. HARVEY: That's a copy of a newsletter that was sent. THE COURT: Well, actually you put it up, my recollection is. MR. HARVEY: I'm sorry. It came in through Mr. Miller. Never mind. THE COURT: Like wise, I don't recall you asked a question. You put it up, and I don't think you ask a question anyway. Well, it's in, I think. COURTROOM DEPUTY: Yes. THE COURT: All right. Anything further, Mr. Harvey? MR. HARVEY: No, Your Honor. THE COURT: All right. MR. GILLEN: Your Honor, just for your information, I understand the reporters have appeared for the depositions but refused to comply. THE COURT: Well, we'll take that up. I want to talk to you at the break at that because I want to clarify exactly what the circumstances are, unless you feel that we need to -- are they assembled and waiting for something now? MR. GILLEN: No, Your Honor. THE COURT: Have they adjourned? MR. GILLEN: The deposition has been adjourned due to the witnesses' failure to comply. THE COURT: We'll take it up at the break then. Mr. Harvey. MR. HARVEY: The Plaintiffs call our next witness, Plaintiff Bryan Rehm. THE COURT: All right. Whereupon, BRYAN REHM having been duly sworn, testified as follows: COURTROOM DEPUTY: Spell your name for the record. THE WITNESS: Bryan Rehm. B-R-Y-A-N. R-E-H-M. MR. HARVEY: Your Honor, may I approach the witness with a binder of exhibits? THE COURT: You may. DIRECT EXAMINATION BY MR. HARVEY: Q. Mr. Rehm, please tell us where you live? A. 3690 Rock Creek Drive in Dover Township, Pennsylvania, 17315. Q. How long have you lived in Dover? A. I moved in, I believe it was, in August of 2001. Q. Are you married? A. Yes. Q. And do you have any children? A. Four. Q. Please tell us the ages and names of your children? A. Alex is 14. Paige is 8. Ian is 7. And Lucas is 15 months as of last Thursday. Q. Are any of these children -- do any of these children attend school in the Dover Area School District? A. Two of them are in the Dover Area School District. A third one is charged under the Dover Area School District but is handicapped and is in a special class for that. Q. Tell us what grades they're in, please? A. First, third, and ninth. Q. The child that's in 9th grade is at Dover Area -- Dover High School? A. Yes. Q. And is that child taking biology class right now? A. She currently has biology class, yes. Q. Are you married? A. Yes. Q. What's your wife's name? A. My wife's name is Christy. Q. What does she do? A. She is an English teacher. Q. What is your job? A. I am a physics teacher. Q. Where do you teach physics? A. In a school outside of York County. Q. What's the name of it? A. Is that necessary at this point? Q. It's not necessary. A. Okay. Q. Can you please tell us your education? Where did you graduate from high school? A. I graduated from high school in 1994 from Central Dauphin East High. It's a suburb of Harrisburg. Q. Did you attend college? A. Yes, I did. Q. Where did you go to college? A. I did my undergraduate work at Lebanon Valley College in Anville, Pennsylvania. I've taken graduate work in a number of different places, including what used to be Western Maryland College. It's now McDaniel. Penn State York and Penn State Main Campus. Q. And were you ever a teacher at Dover High School? A. Yes, I taught there for two school years. Q. What two school years were though? A. I believe it was the 2002-2003 school year and the 2003-2004 school year. Q. And what did you teach? A. I taught science. My main responsibility I was hired for was physics. And in addition to physics, they put a physical science court course in my schedule and a course at the time that was titled science technology in society, which is an environmental and ecology course. Q. When you were at Dover High School, who was your supervisor? A. My supervisor as far as department goes was Bertha Spahr. She sort of maintained the department. But I would directly be supervised by the building principal, who was Trudy Peterman at the time. Q. I want you to think back now to the 2002-2003 school year and tell me whether you remember any conversations with Bertha Spahr about a board concern about the biology curriculum? A. Yes, there was many occasionss on which we had such conversations. There was more than myself and Bertha Spahr present. It was common practice that we had a lunch period together, and she was my mentor, so to speak, so I would eat lunch in her room along with Rob Eshbach on most days and sometimes another teacher who has since left the district. We'd talk about things going on in the classroom, things going on in the district, etc., and quite frequently concerns of board members and the biology curriculum would come up. In addition, Mr. Baksa would frequently stop by because he would relay the information to us. Q. Tell us what you can recall about those -- can you recall any specific conversation? A. As far as date and time, not exactly. The context of them, it always centered around biology. And initially, I just didn't think much about it. I was eating lunch, and I was there for guidance, if I was messing anything up. But generally, I'm trying to get done and thinking about the next class coming up. Those things that came up were biology, biology, biology, and when pinned down for, what about biology, well, the evolution unit needs to be balanced. Q. Did Mr. Baksa in those conversations tell you about a board concern about the biology curriculum? A. Yes, he did. Q. What did he say? A. The concern was that biology, the evolution unit needed to be balanced. And at some point in time, unfortunately I can't say if it was Mr. Baksa that told me or Bertha Spahr, it was the 50/50 with creationism concern. Q. Did they mention any particular board members having that concern? A. At that point in time, initially I did not know who the Board member was, just that it was the school board members, and it was actually pluralized at that point in time. It did not indicate a single member but several members. Q. Did there come a time when you were told that there was any particular board members? A. Much later on, it came out to that. At that point in time, I was told it was Alan Bonsell. Q. Now do you remember having a meeting with Mr. Bonsell to discuss his concerns about the biology curriculum? A. Yes, I do. Q. Can you tell us approximately when was that meeting? A. It was in the morning. As far as much closer than that, I don't recall. My planning period is in the morning, and it was during my planning period. A lot of science department, with except for maybe one teacher, had common planning time together, and that's when they scheduled the meeting for. It was, I'm guessing, in the spring of '03. Q. Okay. You say you're guessing. Do you have any reasonable approximation of when this was? A. Unfortunately, no. Q. This was certainly while you were a teacher at Dover Area? A. Yes, yes, otherwise I wouldn't have been invited to the meeting. I would have had no business there. Q. Tell us who you can recall at the meeting? A. For certain, it was myself, obviously. Bertha Spahr was there. Jennifer Miller, Rob Linker, Robert Eshbach, Trudy Peterman, Alan Bonsell from the school board. Mike Baksa was there to introduce us. And there others, I think, were there, but I'm not certain, so I will not mention them at this time. Q. Just to get a little clarity on time. What was your -- when did you leave your job at Dover High School? A. I left Dover High School, I believe my resume shows official, June 21st, 2004. Q. And we're going to take in just a couple minutes of a board meeting on June the 7th, 2004. Do you recall that board meeting? A. Yes. Q. Was this meeting that you're discussing now with Mr. Bonsell and the others, was this prior to June the 7th? A. Yes, definitely. Q. Was it months prior to that? A. At least. Q. How was the meeting arranged? A. The meeting was arranged by Mr. Baksa. He had been relaying information to the science teachers, primarily Bertha Spahr's the department chair, during these lunch conversations where he'd stop in. And we repeatedly explained to him, we're not going to do this. We're not going to balance evolution with creationism. It's an inappropriate request. It's inappropriate. There's no educational purpose for it. It's not a good decision. And we would lay out as many reasons as we could and send them back with Mr. Baksa to relay to the school board members or Alan Bonsell. And, you know, the next day or two days later, Baksa is back in lunch again with the same questions and the same concerns. And we explained this to you already. So after numerous times, I mean weeks of this, he said, well, how about if we just get you together with him? And then somehow through Mr. Baksa and Dr. Peterman, the meeting was arranged. Q. Who was Dr. Peterman? A. Dr. Peterman was the high school principal. And the meeting ended up being held in her office, which was in the old principal's office before the construction project. Q. Can you remember what Mr. Bonsell said at that meeting? A. The general context of it started with, that he was concerned about biology because he felt that we weren't fulfilling the district's mission statement, and that the district's mission statement was along the lines of that, the parents and teachers and faculty and administration work together to nurture the kids and to whatever beneficial things for the community, and they're supposed to be working together. And he felt that because of evolution, that we weren't doing that, that kids were going to come into the evolution lesson, and they're going to go home and sit down at the dinner table with their parents, and they're going to talk about what they learned in class that day, and the parents are going to have to tell it the kids, well, your teachers are lying to you. And when pressed for why that was, he explained to us, well, that is because he doesn't believe in evolution, because that's against his religious views, which were consistent with what I would label young earth creationism. Q. Did he mention anything in that conversation about the age of the earth? A. He mentioned something that the earth is closer to 6000 years old. Q. During that conversation, do you recall him using the word creationism? A. I remember the term creationism and Alan Bonsell's name being stuck together. And unfortunately, I can't specifically place it at that meeting or if I heard it previously from Mike Baksa at the lunch conversations. Q. Now what did the teachers -- do you recall what the teachers said in response to Mr. Bonsell? A. The teachers had gone in unified because we knew that they wanted to change the biology curriculum. They had asked that the science teachers do it, to put creationism ideas into it. And we had basically reached a uniform decision that it's inappropriate and we're going to stick together. But at the same time, we're teachers and we need to be professional and we need to be civil going into this conversation. So our objective was to gather as much data as possible, because we're science teachers and that's the way we try to do things, and see where that would lead us to. The concerns that were expressed from Alan Bonsell were dealing primarily with the ideas of macro evolution, and he expressed concerning about monkeys to man. And once we got that and figured out what his concerns were, we took the approach of, let's educate Mr. Bonsell as to what the biology evolution unit actually covers, which we don't teach monkey to man. It's not an essential part of what we need to do to get the students ready for the state standards test. So we took that information. We acknowledged his concern. We understood why he was concerned because nobody wants to have to go home and hear that their children are learning contradictory things. And we certainly don't want parents telling the kids the teachers are lying. That's not our job. That not our objective. And that's not our intent by any stretch of the imagination. From there, we proceeded to explain to him how we would basically teach the general evolution unit, what's taught, what are the purposes of it, what's the content of it, explaining that we're focusing on the micro evolution processes. Yes, addressing it with natural selection. But these are the things that the kids are going to need. That's going to be covered on the test for the state exams. That's what they're going to need if they choose to go to college and want to major in anything dealing with medicine or any of the future technology and careers that ideally we're preparing our students to be qualified for. Q. You used two terms, macro evolution and micro evolution? A. Uh-huh. Q. And I don't want to get a science course, but I do want to get just your, tell us if you would, what you meant by those terms, macro evolution and micro evolution? A. Macro evolution is generally applied where you're seeing large changes in the types of organisms. For example, in the analogy of monkey to man, or more correctly, the pre-ancestors of both monkeys and man, to those separate species would be considered macro evolution. There is very large changes in the physiology and the, possibly, the body structures, things of that nature. Whereas micro evolution is what we typically look at as the change over time. You're looking at small changes. For example, diseases become resistant to bacteria but still being the same basic disease. The reason why we have different variations of tuberculosis and why we have different variations of the AIDS virus and those types of things. Also dealing with pesticides and resistance to pesticides. That would be the micro evolution where you still have a grasshopper, but now because of the influence, in this case human influence with the pesticide, the pesticide will no longer kill the grasshopper. You now have to change pesticides to find another way of eradicating it. Q. Was there any resolution from this meeting between the teachers and Mr. Bonsell? A. As I left the meeting, I recalled no resolution. It was getting on this and taking the majority of the planning period. And the teacher's schedule, you're concerned about your planning period. It's very important to you. It's the only time you really have where you can focus on getting things done that you can't do when students are in the room; grading papers, updating grades, making phone calls to parents, things of that nature, writing your lesson plans to submit. And I don't recall any resolution whatsoever. I was in a rush to get back and get my work done. Q. Do you recall, after this meeting with Bonsell, being asked to watch a video about evolution? A. Yes. Q. Who asked you to watch that video? A. As far as I can remember, the request came through Michael Baksa stating that the school board wanted us to watch it. Q. Did they say what the name of the video was? A. Initially, I did not know the name of the video. I did not know the name of the video until we sat down and watched it. Q. What was the name of the video? A. The name of the video was Icons of Evolution. Q. And who watched it with you? A. The majority of the science department. Myself, Rob Eshbach, Jen Miller. I believe Bertha Spahr was there. Leslie Praul. Rob Linker. And I don't know if if anybody else was or not. Q. Let's go back for just a second. When you had the meeting with Mr. Bonsell, did he have any position on the Board or did you have an understanding at the time that he had a position on the Board? A. My understanding at the time was that he was part of the curriculum committee. In fact, I believe I was told he was the curriculum committee chair, which is why we were having the meeting with him dealing with curriculum issues. Q. Now let's go to where we just were. Following this occasion on which you were asked to watch a videotape, were you asked to meet with anybody with regard to that videotape? A. I don't understand your question. Q. Did anyone ask you, after you watched the videotape, to have a meeting with any board member? A. There was a request, not of me specifically, but of the science department, that we should be meeting with school board members. The video, as I recall, was watched late in the school year. And we sat down as a department and watched, and we were discussing amongst ourselves, and Mike Baksa came back in at that point in time. He was basically, well, what did you think? Once again, well, how about if you communicate that directly to the board members? And there was some type of meeting set up. Q. And do you know, did he say who that meeting would be with? A. The meeting, as I understand, ended up being with Bill Buckingham, but I don't know if he said at that point in time to meet with Bill Buckingham or if he just simply said a school board member. Q. Did you attend that meeting? A. I could not attend that meeting. Q. Why not? A. My wife was pregnant at the time, and I was getting out of school as quickly as possible to get home. She was eight months pregnant or so. The baby was due the 10th of June. It ended up coming out on the 23rd. This was late in the school year, and I was more concerned about my family than I was the Icons of Evolution video. Q. Now this occasion on which you watched the video, was this prior to the June 7th, 2004, board meeting? A. I'm suspecting that it was. June 7th was getting very late in the school year. But I cannot place those dates specifically sequentially. Q. Did you attend a board meeting on June the 7th of 2004? A. Yes, I did. Q. Did you attend any other board meetings in June of 2004? A. I attended the second June meeting as well which, I think, was on the 14th. Q. Why did you attend those meetings? A. The June 7th meeting was at the urging of Dr. Peterman. Periodically, when there's something going on with the school board that the teachers would be concerned of, she'd let us know. She'd walk into the lunchroom and find us or let us know by some other means. In this particular case, she explained to us that there is a concern over textbooks that hadn't been ordered, that should have been ordered, and it would be a good idea if the faculty showed support and solidarity and as many as possible could attend the meeting for that reason. Q. Do you remember why you attended the June 14th meeting? A. The June 14th meeting, I attended for probably a similar reason, but also as a follow-up to the June 7th meeting. Since there weren't all the answers given on June 7th meeting, June 14th was a follow-up meeting. It made sense to follow-up and see how it finished out. Q. Can you separate those two meetings in your mind so that -- let me finish my question here -- so that you can remember what happened at one meeting versus happened at the other one? A. Not very well, not without any type of refreshing. Q. Just tell us, if you can, without respect to which meeting it was, tell us what you can remember that happened at either of those meetings? A. I walked in. I was a little bit late to one of them. And I sat near the back. At that point in time, they ran the Board meetings. They still had the tables set up from the lunches, because they hold the Board meetings in the 5th and 6th grade elementary building. And I sat at a table. If I'm at the front of the Board room, it would be to the Board's left near the back. I sat down with other science teachers and was sort of asking, all right, what did I miss so far? The first thing I can remember concretely where I started to pay attention to the front of the room was when Barrie Callahan was asking during public comment about the biology textbooks, why weren't they ordered, and what's going on here. Q. Do you remember specifically what she said? A. At this point in time, it's not coming back to me. Q. Do you remember what was said to her in response? A. I can't specifically say it's the 7th meeting, but when asked that question, the response from Bill Buckingham was, laced with Darwinism. In fact, actually now I can pin that down. I apologize for the sidebar here. That had to be at the June 7th meeting. Between June 7th and June 14th was graduation that year. And the senior speech made mention of that comment, so it had already filtered down to the student population at that point in time or else it wouldn't have been there. Q. Do you remember anything else about an exchange between Barrie Callahan and the Board? A. At this point in time, nothing is coming to me. Q. Do you remember a student by the name of -- a young man by the name of Max Pell? A. Yes. Q. Who's Max Pell? A. Max Pell was a student I actually had the previous year in my physics class and had graduated and gone on to school. And I actually had a brief conversation with him at some point that night. How are you doing, Max? Good to see you. How's school going? Those types of things. It's always nice to see your former students. Q. Do you remember whether that was the June 7th or 14th meeting? A. Without a refresher, I don't recall. Q. Do you remember what -- do you remember Max speaking to the Board? A. Yeah. At some point, I am suspecting it was after Barrie's question about the textbooks and then the relaying statement of laced with Darwinism, he got relatively concerned and stood up, and showing Max's mannerisms and nervousness, he stood up and was questioning them about why? Why are you considering this? How can you say that? Q. Tell us what you can remember about the exchange between Max Pell and the Board? A. Aside from the concerns of, why are you doing this, this is inappropriate, and I think you're taking a risk here, Mr. Buckingham had responded. I couldn't say specifically what. Off the top of my head, I don't recall. But that's the first where I really saw the school board meetings sort of going downhill and degrading into not very positive discussions. Q. Do you remember anyone saying at either meeting something about balancing evolution with creationism? A. I remember that comment, and I can't say which meeting, but that comment had come up after the laced with Darwinism. I can also remember conversations, and I don't know once again if it was the June meetings or the next meetings in October, when Alan Bonsell was talking about, well, if you teach both sides, it doesn't matter. There's no problem. You just can't favor one. Q. Did he say what he meant by both sides? A. Creationism, and the only other theory was evolution. Q. Do you remember anyone at either of these meetings saying something about 2000 years ago? A. Bill Buckingham, and I don't remember which meeting, but, yeah, I heard it. It's one of those things that I couldn't believe. It's not something you should be saying running a public school. Q. What did he say? A. 2000 years ago, somebody died on a cross. Can't somebody stand up and take a stand for him? That's paraphrasing. I don't know if that's his exact words, but it's close enough, and it's what he meant. Q. Do you remember anyone at either meeting saying something about this country being founded on Christianity? A. I remember hearing that also from Bill Buckingham, but I couldn't tell you which meeting. And I couldn't tell you if that -- was that said in October? Aside from hearing it, I can't place it, which one. And I know that I definitely heard it from Bill Buckingham. Q. Do you remember a woman named Charlotte Buckingham speaking at one of these meetings? A. Yes. Q. Tell us, what was your understanding at the time of who Charlotte Buckingham was? A. Initially, I didn't know until she stood up. And at the board meeting, when you are going to speak in public comment, you have to state your name and where you live, much as we do at the introductory here. And that's when I heard her for the first time. Q. Did you have an understanding who she was? A. At that point in time, yeah, I realized she was Bill Buckingham's wife. And I'm not positive, but I think she may have even said that or there was an exchange between, you know, other board members, nice to see you, Mrs. Buckingham, and things of that nature. Q. Do you remember what she said at that meeting? A. She had a prepared statement. She was flipping pages. I don't know how many, but it was more than one. And it was basically how Darwinism is a problem. We need to look to the Bible. And she quoted many, many, many Old Testament scriptures about why we need to be referencing God in the classroom. Q. Now I'd like -- do you remember anything else that was said at either of those meetings, either by board members or members of the public? A. Bertha Spahr had stood up requesting, once again, the considerations for the textbooks. Once again, I'm having trouble if this was the June meeting or the October meeting. She stood up more than once at different meetings. I later stood up at different meetings as well. And as far as pinning down dates, unfortunately, I can't. It all sort of blends together. Q. Do you remember speaking at either of these meetings yourself, speaking in public to the Board at either of these meetings? A. At a meeting, yes. I've spoken at at least four meetings, and they would have started in June probably. I don't believe I waited until the October meeting to begin speaking. Q. Do you remember what you said? A. I was concerned about the comments, in particular dealing with laced with Darwinism and the references to needing to balance out evolution. There was a communication, as I was hearing it, from the school board that the two ideas, you know, were in conflict and you had to resolve them and that it was a scientific debate. I'm a science teacher. I've taken many courses in it. And there should be no debate as far as scientific evidence goes. Science looks at the science. Your religion is your religion. It's perfectly fine. Q. Mr. Rehm, I just want you to tell me if you can remember what you said? A. Those are what I was saying. Those are the ideas I was communicating to the board. Q. Excuse me. Please go ahead. A. Just, you know, there does not need to be a conflict and you're taking a risk by doing this. Q. Now can you remember anything else that was said either by board members or members of the public at this meeting or anyone else at this meeting or at either of these meetings in June of 2004? A. Off the top of my head, nothing is coming to me. Dr. Peterman stood up and spoke on behalf of the book request, I believe, as well. There was discussions of the family consumer science book. And I believe Mrs. Harkins was questioning, why are we getting this book because it's so similar to the one we already have? And then there's the explanation, well, there's not enough of the same edition. And then there's similar discussions about chemistry books and biology books. Q. Now I'd like you -- I'd like you to look at what has been marked as P-46. A. Okay. Q. Have you had a chance to look at that exhibit? A. Yes. Q. Tell us what it is. A. It's a newspaper article, I believe, from the York Daily Record, dated June 9th, written by Joseph Maldonado. Q. Have you read it before today? A. Yes, I was shown this article a few days ago. And also, I would have read this article, but not from here, in the actual newspaper when it was originally published. Q. Do you recall reading it at the time? A. Yes. We were paying attention to what the school board was doing and making sure we were checking the papers every day because, unfortunately, it was turning into a zoo, and we were concerned about the reflection of that in the media. Q. Now did you just read this just now? A. Yes. Q. Does it help you remember anything else that happened at the -- at either of these board meetings? A. It gives clarity to the things I was remembering as far as positioning on the date of the 7th and the 14th. Some of the things in here that were said that I had forgotten, specific quotes. That's what I remember reading. And there was no discrepancy between what I read then and what I heard the night or two nights before. Q. Sitting here right now, after having looked at that, can you remember anything else that was said? A. Am I allowed to look at it again? Q. You can look at it again? THE COURT: Sure. BY MR. HARVEY: Q. You just can't read it in. THE COURT: Yeah, just don't read or excerpt it directly. You can use it to refresh your recollection. THE WITNESS: What I had already stated about Alan Bonsell commenting on, there's only two theories, creationism and evolution. Bill Buckingham additionally saying, dealing with the laced with Darwinism comments. We need a book that gives balance to the education. These are all the quotes I heard that night that I read the next day and had no question about, that's what was that said, that's what we heard. The brain washing comment directed at Max Pell. BY MR. HARVEY: Q. Tell me what you remember about the brain washing? A. I remember hearing it. THE COURT: Hold on, sir. MR. GILLEN: Again, maybe I can, at the break, we can get a little more clarification. I understand if he wants to refresh his recollection, but it seems that he's adding and he's reading the quotes as if he's testifying to the truth of the quotes. That's not proper. THE COURT: Yeah, the distinction may seem a little artificial, but what you have to do is read the article and then respond to it rather than use it as sort of a punch list as you go through. I think you've answered the question at this point. But to the extent there are other questions, when you have to refresh your recollection by looking at the article, just respond directly to him, and don't refer to what you're reading in the article, if you would. THE WITNESS: Okay. THE COURT: There is a reason for that. THE WITNESS: Please fix me if I step out of line. THE COURT: I will. BY MR. HARVEY: Q. Do you remember anything at that meeting being said about brain washing? A. Yes. Q. Tell us what you remember about that? A. Bill Buckingham said to Max Pell, did you ever hear of brainwashing, something to that effect. When you are told something enough times, it becomes fact. And he mentioned that dealing with, it's what's not in the paper, he was talking about liberal colleges and people going to these levels of higher institution where they are being brainwashed, such as Penn State. Q. Now I want you to think about, do you remember anyone at either of these meetings saying something about liberals in black robes? A. Yes. Q. Tell us what you remember? A. Sticks in my mind, once again, that's something Bill Buckingham said, but I can't be certain. One of these meetings, I did have the pleasure of sitting in front of Alan Bonsell's father who talks during the meeting, and basically said the same thing, these liberals in black robes are taking away freedoms, and we need to stand up and take them back. Q. Did -- do you recall anyone saying anything about the separation of church and state? A. One of these meetings, it was mentioned once again that it was a myth, and I heard that on more than one occasion at the school board meetings. Q. Was there any reference to tracing your roots to monkeys at either of these meetings? A. I remember hearing it and, unfortunately, I can't tell you once again which meeting it was. Q. Well, do you remember what you heard? A. Yeah, you're not going to tell me that I came from apes, and if you insist on it, which side of your family came from apes? Q. Do you remember Mr. Buckingham saying something about having talked through a think tank? A. At one of the meetings, yes. He was questioned, well, who is this think tank, and he wouldn't give any information. And at some meeting again, once again I don't know if it was June or October, he mentioned about how the textbook that was requested by the teachers received an F from a think tank, and then would give no further information on it whatsoever. Q. Do you remember anything else that happened at either of those meetings? A. I don't know once again if this is June or if this is October, but it was brought up about, you're walking into dangerous ground, violation of separation of church and state, which somebody, either Alan or may have even been Noel or Bill at this point, was reminding us, well, separation of church and state is a myth, and said that even if the district was sued, he's been in contact with a group that will defend the district for free. Also, when asked, he would not say who that was. Q. Following these June meetings, did you attend any other meetings of the board that summer? A. I did not attend anymore meetings during the summer. Q. Why not? A. Had other things to do. Q. And did you attend a board meeting on or about October the 18th of 2004? A. Yes, I did. Q. Why did you attend that meeting? A. I had been talking to people in the community. Getting around to school year starting up. So that is when a lot of thing started to happen again. And I would run into some members of community when we were out eating dinner, so forth. How are things going? What's going on? How are things at the school? And I heard rumblings of, well, the school board is doing this creationism thing again, and you need to pay attention to it. Q. Do you remember running into Mr. -- excuse me, Dr. Nilsen shortly before that meeting? A. That's what I was getting to, yes. I believe it was a Thursday night. I'm not positive. But my daughter at Weiglestown Elementary School in the district, where they were having a book fair. And my wife and I took her and our other children to the book fair to get some books. And the PTO that night was also sponsoring some type of parents' information thing in the gymnasium, so they had -- which is their all-purpose room, they call it -- a series of tables lining the parameter and there's different vendors there. There's the bank, the food bank, and things of this to help parents do a better job with limited resources. And Dr. Nilsen happened to pop his head in the door when I was there. And I took the opportunity that, hey, I'm going to go over and talk to him. And I walked over to Dr. Nilsen and said, what's going on? I hear there's going to be some big thing going on at the Board meeting. He said, I don't know what you're talking about. I said, well, it's dealing with, once again, the science curriculum. He said, oh, nothing will ever happen. There will never be a vote. You don't need to worry about it. I've been in the district long enough to know that, you don't assume things won't happen that you don't want to have happen. Q. Who's Dr. Nilsen? A. Dr. Nilsen is the district superintendent, Dr. Richard Nilsen. Q. And that conversation you had with Mr. Nilsen, where was that in relation in time to the October 18th? A. That was prior to the October 18th meeting. And his response there -- within four or five days. His response there is why I made it a point to attend the October 18th meeting. Q. Tell us what you recall of the October 18th meeting? A. The October 18th meeting, once again, there's a public comment period. It was getting rather heated from which I can recall. It went on very long. Public comment period lasted for a very long period of time. At this point in time, my wife had the baby, so he was about three months old, and we didn't have a baby-sitter for the baby. So the oldest child, we let watch the other two, the reasonable age ones. We took the infant with us and went to the meeting and were sitting there. So the meeting had gone very long because of this public comment period, very heated discussions over what the proposed curriculum changes were and why it was necessary and still about textbooks and things of that nature. I remember discussions about the curriculum. There was proposals. I remember Baksa standing up and reading proposals. I remember the comments that the teachers had helped write the proposals. I can remember heated discussion amongst the Board members about the proposals. In particular, Alan and Bill were favoring changing it to include statements of intelligent design. I believe there's even one proposal, and I don't remember if I saw this in text previously or if I saw it that night, putting creationism in it. Then the proposal just, you know, evidence against evolution -- or evidence contradicting evolution. Noel Weinrich, who had been previously to this meeting endorsing everything that Bill was proposing, discussing the textbook, and how we had to find balance, had changed his position and thought that it was not a wise move to put intelligent design or creationism in the curriculum change, and had words from Bill Buckingham and Alan Bonsell about him reversing his position. Q. Do you recall what was said, just generally? A. In general, it was basically, how can you do this? How can you reverse your stance on this? This is why we're doing this. You were with this all along. I can't believe you would do this. What are you thinking? That was the general sentiment that was expressed. Q. Did you stay for the whole board meeting? A. We did not. My wife and I, we were both in attendance, and as I said, it went very long. They called a recess. It sticks in my mind, it was around 9, 9:30. It may have been later than that. We had run out of formula for the baby. It was way past his bedtime. And we just couldn't stay any longer, so we had to leave. Q. During the time that you were at the board meeting, did you hear the Board members discussing the reasons why they were proposing a curriculum change? A. Once again, I don't know if it was at that meeting or it was a previous meeting, but the only reason that was given at that point in time was, we needed balance in the curriculum between, once again, evolution and either intelligent design or creationism. Q. Now as you left the meeting, did you speak to anyone? A. When they call the recess and I saw it was going to take a while, I took advantage of the opportunity, because I knew I was going to leave and not get a chance to speak at the later public comment section. They had been generally having two public comment sessions, one at the very beginning and one at the very end. And the school board, when the meeting is over, if I'm facing the school board table now, they would exit the cafeteria to the right-hand side and go down the hallway to where the North Salem faculty room happens to be, and that's typically whether they would adjourn to. And I guess that's where they have their executive sessions. I decided to follow them out into the hall. This is my chance. I'm going to get to talk to them. And I intended to. So that's had an I did. Q. Which board members did you speak to? A. I made a point, as I was leaving, to speak to Alan Bonsell. Sheila Harkins spoke to me. And I just lost my -- Angie Yingling was speaking to somebody else. I sort of walked alongside her to listen to the conversation and then I chimed into it. Q. Tell us what you can remember about your conversation or your exchange of communications with Mr. Bonsell? A. Mr. Bonsell was the last conversation I had. And I basically confronted him and said, why are you doing this? Why are you pushing this? We had that meeting, you know. We explained to you why it's inappropriate. You communicated to us that it's based upon your religious views. And that's not an issue of science. We don't address religious views in science. Basically, he just kept saying to me, well, it's gaps and problems, gaps and problems. I said, what gaps and problems? He said, they're so big, I can drive a truck through them. And he couldn't give me any real examples of what that was. Q. And did you also have an exchange of communications with Angie Yingling? A. Yes. She was having a conversation, I don't recall with who. It was another female. And her conversation was, I don't understand why these people are so upset and why there's so much opposition to this curriculum change. What's it about? And I don't see how it's really religious. I said, well, excuse me, I do understand why. And let me explain it to you. And I enlightened her to what Discovery Institute was and what intelligent design was, what it said, what the history of creation science was, and the emergence of intelligent design after creation science was struck down by the Edwards versus Aguillarad case. Upon my finishing my conversation with her, she said, oh, that is a problem. Q. Now following that board meeting on October the 18th of 2004, did you attend the next board meeting? A. Beginning of November, that would have been, yes. Q. It was -- it was the November 1st meeting? A. Probably. THE COURT: This might be -- if you have a number of questions in this area, we could break at this point. I'm assuming you do. MR. HARVEY: I do have a few more questions. THE COURT: All right. What we're going to do is, counsel, take five minutes, and I'll see you in chambers on a matter that Mr. Gillen raised. We'll do that in about five minutes. This could be a somewhat extended break. We'll take at least a 20-minute break. It may ripen into 30 minutes, depending on what we do. We'll break now. Our last session will be rather an abbreviated one. We'll go to 4:30 approximately, give or take, today. I'll see you in chambers in about five minutes much. We'll be this recess. (Whereupon, a recess was taken at 3:10 p.m. and proceedings reconvened at 3:20 p.m. in chambers.) Kitzmiller v. Dover Area School District Trial transcript: Day 2 (September 27), PM Session, Part 2 THE COURT: We're in chambers. We're on the record. And it's been indicated to me by Mr. White that the reporters, Mr. Maldonado and Mrs. Bernhard-Bubb, were called for depositions, was it yesterday or -- today -- I'm sorry -- today at 10 a.m. and 2 p.m. Mr. White advises the Court that the reporters refused to answer any questions, and that they invoked their, what they claim is a, First Amendment reporters privilege -- do I have that correct -- not to testify. He's presented me with a transcript. I have no reason to doubt that that's what took place. Now we have had some testimony already this afternoon and some discourse about the subject articles. The Court has allowed the articles to be referred to, to refresh recollection. However, we have not admitted them. Let me ask Plaintiffs' counsel, is it still your intention to attempt to call the reporters in your case-in-chief? MR. ROTHSCHILD: Yes, Your Honor. THE COURT: All right. Under the circumstances then, you clearly have a right to depose them. And my -- I don't think I have any choice at this point but to summon the reporters. I'm not going to hold them in contempt without giving them an opportunity to come in. So my intention, subject to, and I'll hear you on this, any of you, would be to issue an order and have them appear, but if any of you think that's inappropriate under the circumstances, or you have a better idea, I'll hear you on that. MR. WALCZAK: Your Honor, if I could add another piece to the puzzle, which is the trial testimony. We have subpoenaed the reporters for 1:00 tomorrow. I apologize for not being here earlier this afternoon for the testimony, but I was meeting with Mr. Benn. I actually attended the deposition and can confirm certainly what Mr. White says. THE COURT: That would solve the problem of having to summon them. I would assume they would appear and then exercise the same privilege. MR. WALCZAK: My understanding is that, they will appear, but it is unclear as to whether or not they will testify. And after speaking to Mr. White, it would be our proposal that we all meet in chambers maybe -- I'm sorry, with Mr. Benn at maybe 1:15. If we break at 12:15, and go back at 1:45, maybe meet at 1:15 to discuss where we are in terms of witnesses testimony and trial. And I guess folded into that has to be the situation with the depositions as well. MR. WHITE: Excuse me, Your Honor. I had asked both reporters whether they were going to invoke the privilege tomorrow, and they said they wouldn't give me an answer. THE COURT: I don't know that there's anything particularly magical about them invoking the privilege in this court. If they, for example, would appear with Mr. Benn, and Mr. Benn simply says, they're here and they're not going to testify. I'm not going to stand on ceremony. So to put them on the stand and waste everybody's time by having them invoke the privilege, I don't think that that's helpful. Now the question I have to grapple with, and I don't know the answer to this at this point, is whether I bring them in chambers, as I think Mr. Walczak suggested, and correct me if I'm wrong, and that I cite them for contempt in chambers and we move on and I determine what sanctions, if any, I'm going to assess against them, they take their appeal, and so it is, or whether I have a dialogue with them in open court. I will tell you that my inclination is to have a dialogue with them in open court at this point, and I don't know what I'm going to do in terms of sanctions at this point. MR. GILLEN: If I may, Your Honor. I mean, you know our position, which is simply that, you know, we're entitled to every man's evidence. And for them to show up tomorrow and attempt to get on the stand -- THE COURT: They're not going to. I'm not going to have them testify as fact witnesses. I'll tell you that now. They will not testify as fact witnesses for the Plaintiffs unless you have the opportunity to depose them. So that is not going to happen. I'll tell you that right now. So, you know, I don't assume that Mr. Benn is playing that game. But if he is, then that's not going to work. I don't know why he would under the circumstances. I'm assuming privilege asserted as to one is privilege asserted as to both until someone tells me differently. Maybe I'm wrong. But I can't. I won't. Because, as I said during the last conference that we had, which was off the record, and I'll state it on the record, in order to get the residual exception under 807, I think implicitly there has to be an opportunity. And I understand that you disagree on the scope of what they would be deposed on, but at a minimum, you have to be given the opportunity, since they're called as fact witnesses, and if you are going to attempt to assert 807 to have some questioning, and you haven't had that opportunity. So they're not going to testify unless the Defendants have had the opportunity to, the full opportunity within the limits of my orders to question them. I am confounded by this. I will tell you that, in the abstract, I understand the argument, but I think this is the wrong place to line draw by them. I think it's very in fortunate. It's going to impede this trial. I got a reading from Mr. Benn, although it was not explicit, that if I tailor this order to certain concerns that he had, they would testify. I, in no way, understood his motion last week, which asked for alternative relief and asked for the same relief that I thought I granted in the prior order, which I have to tell you, was utterly confusing to me as it related to your subpoena. Maybe somebody can explain that, but I can't. MR. WALCZAK: I think, after meeting with Mr. Benn for an hour, I have a slightly different understanding of what they are asking for. But I certainly don't want to represent his, Mr. Benn's, views to the Court. And I would rather him state that tomorrow. I think that our primary concern is that we are able to get this to the Circuit and have them decide this on an expedited basis. An expedited, I would think, is a couple of weeks. Since it's a bench trial, I assume, if we get a decision in two or three weeks, and if even if the Plaintiffs are done with their case-in-chief, assuming there's no directed verdict, that we would be able to call them out of turn. THE COURT: I understand that. And I have that same concern, too. I also have a concern, you know, for the integrity of this court and this proceeding. And I, as I said last week, I was not inclined to do business as according to what I characterized at that time is the Marcus of Queensbury [Marquess of Queensberry? - editor] rules where we have contempt by consent and life goes on. Now I don't know what I'm going to do. But I'm, you know, deeply concerned, and not particularly happy that we have this line drawn in a place where I don't think it should be drawn. Reasonable people will differ. I'll hear Mr. Benn out, as I have to, but I don't know what else we can do. So we'll conference in chambers on at least the issue of what Mr. Benn intends to do. We can get that on the record. I don't know what I'm going to do in terms of the dialogue with the reporters themselves. But your understanding then is that they will be available in the building? It's not necessary for me to separately order their appearance, if I understand you correctly? MR. WALCZAK: That is my understanding, and I'd be happy to take responsibility for contacting Mr. Benn for two reasons. One, to verify that's true. And second, to confirm that we'll meet here at 1:15. THE COURT: Well, I don't know if it will be 1:15. We'll take it as we can. Let's just say, after lunch, because, you know, if they're a little inconvenienced, they're a little inconvenienced. We all have to be here, and I'm not going to disrupt anybody's case. It just depends on how things go. So I would be reluctant to say, 1:15 sharp, but let's just say, after lunch they should be available. I would say, any time from 1:15 on. I'll try to take it as soon as I can. Does anybody else want to weigh in on this conundrum? MR. WALCZAK: I think it's just because we don't have enough interesting constitutional issues in this case already. MR. ROTHSCHILD: I wasn't going to give a humorous aside. The only thing I was going to bring up, which was at issue when we were admitting exhibits into evidence, is that, obviously, the flip side of this, one side of this, and the reason we're trying to call these reporters, is to get these articles in for the truth of the matter asserted. We still have, obviously, our flip side argument, which is that, this is what a reasonable observer would know about the controversy. THE COURT: Well, I understand that argument, and, you know, I think we can take that up, but, you know, to chew that fat, so to speak, when we've not run through the mechanism that you're attempting, which is to have the reporters verify the article, and I understand their arguments on both sides, I would just as soon not go there. Now one result we could get, if they take it up, is the Third Circuit could agree with Mr. Benn and they could say that there is a privilege here, and that's the argument you're left with. And you could assert that argument at that time. But I don't know why we have to do that. MR. ROTHSCHILD: I guess the only thing I would say, I don't look at it as the argument we're left with. I think it's actually an independent evidentiary purpose. It may be the more important one actually from our perspective at this point in the case, that we get the evidence that the reasonable observer in the community would have been aware of. THE COURT: I understand that, but I think, as a progression, if you want to abandon your attempts to bring the reporters in, and I know you don't, then we'll have to focus in on that argument. I'd just as soon not and rather allow you the opportunity to do that. I recognize that you don't think it's a second best argument, but it's an ancillary argument, if you will. I think, let's take the first method first, so to speak, and then we'll deflect it, if we have to. You'll agree that, if the Third Circuit agrees with my assessment, which is that there is no reporters privilege, and if, in fact, they're deposed, and if, in fact, you take them, and if, in fact, I allow the articles in on that basis, three if's, but if I do, you won't have to assert that argument, the ancillary argument. MR. WALCZAK: Although, on the other hand, I think it's not, from our perspective, it's not a question of whether the articles come in. The question is, for what purpose they come in. And our argument would be that they definitely come in as historical record. The question is whether they come in for the truth of the matter asserted. THE COURT: I understand that. But if they came in for the truth of the matter asserted, which is what you're attempting to do through the reporters' testimony, then they're obviously going to come in for effect. MR. WALCZAK: Right. They're better. THE COURT: That pulls them in. Right. But it doesn't happen the other way around. If they come in -- if I allowed them in for effect on your argument, then they wouldn't come in for the truth of matter asserted. MR. WALCZAK: Well, they could come in for both. THE COURT: Well, I'm not so sure. I think what you're left with, without the reporters' testimony, my view, is that they could come in for a collar boy on the argument that's asserted for effect. But I would tell you that, I'm disinclined to let them in standing alone without verification from the reporters for the truth of the matter asserted. I'm not inclined to do that. MR. WALCZAK: Right, but I think they come in for, this is what the community was reading, not that what happened and this is happened. THE COURT: On the effect prong. MR. WALCZAK: Right. That's a non-hearsay purpose. THE COURT: I understand that, but not the truth of the matter asserted in the article, which is probative of, for example, Mr. Buckingham making certain statements, if all you assert is the ancillary argument. That's my point. MR. WALCZAK: That's right. MR. MUISE: That's assuming the effect they're making is the proper one, which we obviously disagree with. THE COURT: I understand that, and you reserve the right to argue on that point. That's why we've taken the exit ramp off into that argument that I didn't want to, so we'll save that, and I'll let you assert whatever arguement you want to on that. That's precisely why I don't want to do that unless we see what happens here. All right. (Whereupon, the discussion held in chambers concluded at 3:35 p.m. and proceedings reconvened in the courtroom at 3:45 p.m.) THE COURT: All right. We'll continue with the direct examination of this witness. DIRECT EXAMINATION (CONTINUED) BY MR. HARVEY: Q. Mr. Rehm, earlier you said that Mr. Buckingham had made a comment to the effect of, 2000 years ago, a man died on a cross. Can't someone take a stand for him? Or words to that effect, correct? A. Correct. Q. You said that was said at one of the June board meetings? A. Yes. Q. Do you remember, I can't remember if I asked you, do you remember which board meeting that was said at? A. I cannot place which meeting. Q. Was that said in the context of a discussion about the biology textbook? A. Yes, it was specifically about Darwinism, centered around the textbook, and how evolution didn't agree with it and, therefore, had to be balanced so that those that don't agree with evolution can have something else that they can hold onto. Q. Now let's go back to the November 1st board meeting, which is where we were just when we took that short break. A. Okay. Q. Did you attend a board meeting on November the 1st? A. I'm pretty sure that I did. Q. Why did you attend that board meeting? A. It was a follow-up to the 18th board meeting. I read the newspaper articles following the 18th meeting and saw more of the reports of what had continued on after my wife and myself had left, centering around the expectations of the Board and Heather Geesey's comment that they should be fired, and it was in the context, if they asked for legal representation, if they're -- if the suit is filed against them for somehow addressing intelligent design in the classroom. Q. Let's go back to the October 18th meeting for just a second. Do you remember board member Heather Geesey saying something to the effect about somebody being fired? A. I was not there at the time that it was supposedly said, which is why I showed up at the November meeting, having read that in the paper, having requesting to hear the audio tapes. Q. Did you request to hear the audio tapes? A. Yes, did I. Q. Did you do that before the Board meeting? A. The November 1st board meeting? Q. Yes. A. I did it at the board meeting. Q. What did you say? A. I stood up and explained why I did not get to hear the comments, that I was concerned by the comments I was reading in the newspaper, and since the Board members had been denying that they said those comments, that I wanted to hear them for myself. When I had the infant with me and I had to take it home because it was way past its bedtime. It needed more diapers. It needed bottle fed. I had to leave. That was the more responsible thing to do. Therefore, since I missed the opportunity to hear what was being said for myself, the audio tape is there, I should be able to hear it. Q. And you're referring now to the audio tape of the October 18th meeting? A. Correct, correct, where it should have been recorded what those comments actually were to determine if they were said as reported or were not said. Q. When you say, the comments, you're referring now to the Heather Geesey comments? A. All of the comments in general, but specifically the Heather Geesey comments because that's what I read in the paper that I wasn't able to hear on my own. Q. What were you told by the Board on November 1st or any member of the Board on November 1st in response to your request that you should be permitted to hear these tapes? A. My request was framed around information I had been given previously, such as that the Board would have the tapes available, and generally you could either get a copy of them or you could go to the administration building and listen to them. And I asked, why can't we get a copy, you know, because we already asked that question previously and had been asked through phone conversations and so forth. I know I stopped in the administration building, I can't tell you if it was before or after the November 1st meeting, and specifically asked and actually spoke to Mike Baksa about it. And he told me at that point in time, he was waiting for the Board to make a decision. It was then related back to me at the board meeting that that was not the practice and that it had been, in fact, checked on, and we would not be allowed to listen to the audio tapes. And this was coming from Mr. Bonsell. And he stated that they had consulted with the district solicitor and he related to the public there that they could not release the audio tapes because they were told it would open up the Board members to possible litigation. And then he followed it up with -- I'm actually not going to say that because I don't remember if he said that or if that's what I'm thinking to myself as he's saying it. Q. Did he say anything about hiding anything? A. That's the part that I'm not sure of. It sticks in my mind he did say that, that we're not trying to hide anything, this is what the lawyers have told us to do. But at the same time -- unfortunately, I can't specify he said that versus that's my thinking as he's saying, we're not going to release them. Q. Now -- A. I'm sorry. I take that back. He did say that. And the reason I know is because I'm thinking to myself, that's a contradiction. How can you be telling me that you're not hiding anything, yet the lawyers told you you can't release them or you'll be open to litigation? To me, that was a direct conflict. So, yes, now thinking through that, that's what I remember hearing. Q. Following this, did you seek appointment to the board of directors for the Dover Area School District? A. Yes, I did. Q. And approximately when was that? A. It was in the middle of November, the 15th, 18th, somewhere in that time frame. Noel Weinrich had been resigning. I just lost the other -- Jane Cleaver was resigning. My understanding was, Noel was moving to Lancaster, Jane was moving to Florida, or something of that nature. Then the Browns had resigned in protest over the biology curriculum change. Therefore, there were four vacancies on the school board that needed to be filled. The vacancies are filled by appointment by the remaining school board members. Q. Did you have to do something to become, to seek appointment? A. You had to contact the administration offices,, Dr. Nilsen, I believe, was the main contact on that. You had to submit a letter of intent with your qualifications. I did that. And then about two days before it was, you got a phone call that I was scheduled to be interviewed at the public meeting that they were holding to do interviews. And subsequently, it was followed by a letter in the mail the day or two days before the actual interviews is when I received that letter telling me where it was, when it was, and that I had to have a prepared statement when I arrived. Q. Now did other people seek appointment? A. Yes, it was a full house. There was in excess of 10 applicants. Q. So you and the other 10 applicants had to appear before the Board? A. Yes, we all had to be interviewed. Q. What was the process of appearing before the Board? A. The school board was still set up in the general board meeting setting where they had tables at the front for the board members, and then they had the audience on basically the opposite side of that. But they had it pulled into more of a compact U shape, where Bill Buckingham was here. I don't remember who was right beside Bill Buckingham. Alan Bonsell and Sheila Harkins were somewhere in the middle. Dr. Nilsen was mediating it. And then to the left side, I don't remember who was on my immediate left, and Angie Yingling was still on the left-hand side of that format. Then there a smaller table set up where I was a little bit away from -- where all the candidates were away from the Board members when it was your turn to be interviewed. And you sat there and they conducted the interview. They asked one question at a time, and they alternated which person would ask the questions to you. Q. Did the candidates go up one at a time to be asked questions? A. The candidates were pre-scheduled according to a particular order, and they were called one at a time to be interviewed, yes. Q. Were you present when the other candidates were interviewed? A. Yes. Q. And at this point, had you spoken out against the Board policy curriculum change that is the subject of this lawsuit? A. Yes. At some point in time, I spoke out against the Board's decisions way back before the October decision -- I know I was speaking in June -- I don't remember which meeting -- about the idea then of changing and the textbook selection, that the idea of doing this because you have a problem with evolution is totally ridiculous. We're talking about science. We're not talking about anything else here. You have to look at the scientific arguments in science class. I had also spoken out -- the November 1st meeting was about the tapes. I don't know if I said anything else then or not. But it was common knowledge at that point in time that I was opposed to the school board's policy change. Q. Had any of the other candidates who appeared at that meeting to be interviewed by the Board for possible appointment, had any of them spoken out against the Board and its policy, the change to the biology curriculum? A. I don't recall if any had spoken out prior to the meeting. I know that a number of them were asked or offered an opinion when they were being interviewed. One of the candidates, Eric Riddle, who eventually was appointed, actually had spoken out in favor of the school board and, of course, was appointed. Q. Were you interviewed at that meeting? A. Yes, I was. Q. And were you asked any questions that other members, that other candidates were not asked? A. Yes, I was. Q. And tell us what you were asked? A. Bill Buckingham had his next turn for question, and I don't remember the exact wording, but he asked me if I had either ever been accused of child abuse or child molestation. And I don't recall if he said abuse or molestation. But that was his question. Q. Now if you would just, please, take a look at what has been marked as Plaintiff's Exhibit 127. And my only question for you on that document is, did you receive it in the mail? A. Yes, I did. Q. And when was that? A. I'm guessing by the date on it, February. It was after the curriculum change had already gone through. They were, I'm guessing, February 2, that they had already enacted the first reading of the statement. And it really caught me off guard because they passed it on the previous board meeting. Rather, it wasn't on the agenda. They just brought it up and very quickly did it and shuffled it out of the way. Nobody got to see it. Nobody got to read it that was in the audience prior to them already passing it and approving it. At that point in time, the document was not even complete. The copy that they had that was circulating had cut off at least three lines of the last paragraph above where it says, quotables, on the backside. Q. Mr. Rehm, I'd like to turn to my final area of questions to ask you, and so I'll ask you, do you believe that the board's actions have caused harm to you? A. Absolutely. Q. And can you please tell us how the Board's actions have harmed you? A. There is a lot of different ways. I'll simply start with professionally. When I went to Dover, I thought that was going to be my teaching home. I enjoyed working with the faculty. I enjoyed the students I had. It was my home district. It's where I lived. I was looking forward to that. Within those two years I was in the district, I saw a totally different side. And I saw a district in which teachers were not respected for their educational expertise. Their educational background was not respected. Science teachers were not respected. And it was all, as far as the science teachers not being respected, was out of religious ideas. I sat in a meeting when Alan Bonsell told me he didn't agree with evolution because of his religious background. He may not have been aware of it, because I was teaching evolution as well, because natural selection was part of the curriculum for the environmental course that I had to teach. So, therefore, even though he was addressing the curriculum change in biology, he was addressing the curriculum change in something that I also had to teach. How long is it until he changes my environmental and tells me what I have to do? In addition to that, if his religious beliefs of young earth creationism that he expressed are in disagreement with evolution, what happens when we get to the big bang theory and I'm teaching in physics that the earth is billions of years old? And I saw my head on the chopping block and my curriculum as being the next to be altered when they realized what was there. Personally, I live in the neighborhood, you know. I live within the school district where I taught. You used to be able to go out to any restaurant, sit down, not worry about who was next to you. You could walk down the street and say, hi, to everybody and get a nice pleasant return. Now people stare. They know you're a Plaintiff or they know in this particular case that I'm a candidate opposing the school board, and you can't sit there and not worry about who's looking at you or what's going to happen, you know. You'll go out and regularly be called inappropriate things centering around the concept of atheist. They don't know me. They don't know that I'm the co-director of the children's choir at church or that I run the music halfway at the second service, or that, you know, my wife and I run Vacation Bible School. Yet they have no problem going around calling me an atheist because my particular religious viewpoint doesn't agree with that of the school board, which is a public entity not a religious one. Religiously, the young earth creationism and that influencing science is not what my religious views entail. There is a separation there. You know, my religion accepts that science can explain things in the world as we perceive them, but that science is not going to touch theology. It can't explain the divine creator. In intelligent design, every aspect I've ever heard of it, is religious creationism. You know, if the designer is not -- an intelligent designer is not a God, even if you don't want to refer to it as Judea Christian God, what is it? Aliens? Then you're still not addressing the origins of life that you speak of. Where did the aliens come from? So there has to be a supernatural component to. And that, to me, is religious. That's not my religion, and that's not something that should be shared in the science classroom. Scientifically, there is no merit right now to the concept of intelligent design. Philosophically or religiously, is it a possibility? Sure. But it's out of the realm of science. And my career as a science educator is educating students what science is. And we also educate them what the limits of science happen to be. And through the things the Board has done, through their policy, through the mailing of their newsletter here, they're setting up the students that would be walking into my classroom to have conflict right away. They have statements in here dealing with -- am I allowed to read from this? THE COURT: We're in the midst of a narrative answer, and I think the narrative answer might be getting a little extended. BY MR. HARVEY: Q. We just need you to tell us. The question was, how does that cause you harm, and you started to complain how this causes harm. If you could complete your answer? A. Professionally covered. Personally, you know, going out, we have issues with people, where they're not very pleased to see us around and are not hesitating to let you know that. And it's not very polite. It goes beyond atheist to adding other words onto it that I don't care to repeat. So there is a lot of issues and a lot of different ways in which it hurts me, not to mention now my daughter is in the biology course, and there are students in the class that want to know, well, what if you do come from monkeys? What's going on with this? Well, you know that evolution doesn't make sense. Why are your parents doing this? So it has filtered down to the kids, and it's affecting my children directly. And that's a problem. And if the school board didn't pass the policy, it never would have occurred. Prior to their policy change, I never once had a student in class criticize another student for believing evolution, even when we were teaching it. It didn't happen. MR. HARVEY: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Harvey. Cross examination will be by Mr. Gillen. All right. CROSS EXAMINATION BY MR. GILLEN: Q. Good afternoon, Mr. Gillen. A. Hello, Pat. Q. As you indicated, Pat Gillen. I took your deposition. I'm going to ask you a few questions today. A. Okay. Q. Mr. Rehm, you've testified that you recall meeting with Alan Bonsell in the science faculty, correct? A. That is correct. Q. And you've testified previously that you believe Alan Bonsell may have mentioned intelligent design at that meeting? A. It is possible. I previously testified and my deposition stated that I couldn't pin down which word he was using by the time we reached that meeting, but there had been a long dialogue prior to getting to that meeting. So creationism was associated with Alan Bonsell, and I couldn't tell you if it was that meeting or prior to that meeting, and likewise with intelligent design, if it had shown up at that meeting or prior it that meeting. Q. Understood. You testified previously that you recalled Alan Bonsell talking to you about holes in the geologic record? A. Yes, that is correct. I forgot that earlier, but, yes. Q. And you mentioned that, at this meeting, teachers expressed to Alan Bonsell that they taught micro evolution, correct? A. That was one of the main thrusts of the conversation we had with him, that the macro evolution monkey demand was not covered. And we illustrated what commonly is covered, which were mostly examples of micro evolution. Q. And to make sure I understand you, that's changed within species, is that correct? A. A variation of a species, so we would still recognize it typically as the same type of organism, but with a slightly different property. We're looking at the bacteria that was not previously resistant to an antibiotic and now is resistant. Q. Am I correct that sometimes that process you described is referred to as subspeciation? A. I'm not positive -- yeah, that's not a term that I am highly familiar, but that sounds right, that's been used in that context. Q. And I believe you've testified that Alan Bonsell expressed his belief that there were holes in evolutionary theory big enough you could drive a truck through, is that correct? A. I did state that, yes, and he stated that to me. Q. And you previously testified that you remember Bert Spahr talking about the way the term theory is used among scientists? A. I don't know if I testified to that, but that is a correct statement, that she has. Q. Let me do this. Excuse me a second. MR. GILLEN: May I approach the witness, Your Honor? THE COURT: You bet. MR. GILLEN: Thank you. BY SKWRAO: Q. Mr. Rehm, if you would, I just ask you to, rather than tax your memory unfairly, if you look at page 51, line 6? A. I don't mean to be confused here, but -- okay. Now I see the page numbers. Q. Okay. A. Line 6. Okay. Q. And before I ask you the question, I'd ask you to look at page 50, beginning at line 17, down through page 51? A. Did you say, page 50, line? Q. Page 50, line 17, through page 51, line 11, please. Have you had a chance to review that, Mr. Rehm? A. Line 4. Okay. Q. And on page 51, I was asking you about some of the statements that Bert Spahr made to Alan Bonsell at that meeting, and she testified she was explaining or trying to explain that, in science theory, a certain meaning? A. Yes. Q. And you testified that she said it's a plausible explanation supported by evidence and can be modified pending new evidence? A. Yes. Those, I would believe, are my words there, not the exact words she used, but the idea is correct. Q. Good enough. And do you stand by those words today? A. Yeah. It could definitely use some refining. I believe Dr. Miller gave a much better definition than mine, but he's the expert witness. Q. Precisely. I think you testified you don't recall anything coming from this 2003 meeting with Mr. Bonsell, is that correct, no resolution? A. I don't recall any resolution coming of that meeting, correct. Q. You've also testified that Mr. Buckingham provided some materials to the teachers for their review, is that correct? A. That was evidently what happened at the meeting that I could not attend shortly after watching the Icons of Evolution video. Q. Okay. But you do recall reviewing that Icons of Evolution video? A. Yes. But like I said, it was brought to us by Mike Baksa. I did not have any communicationss at that point by Mr. Buckingham. Q. But you understood that Mr. Buckingham had given it to Mr. Baksa? A. I understood at that point in time, a school board member had given it to Mr. Baksa. And I did not necessarily know at that point it was Mr. Buckingham. I cannot say if I did or did not know at that time it was Mr. Buckingham. Q. Okay. As you stand here today, do you know whether it was Mr. Buckingham who provided those videos to Mr. Baksa to be provided to the science faculty? A. It has been indicated to me that it was Mr. Buckingham. But from my own recollection, as far as remembering that point in time, I cannot say from my memory that it was in fact him. That's just what I've been informed of since then. Q. Fair enough. Did you view that video, Icons of Evolution? A. Yes, I did. Q. And I believe that you concluded that it pointed to flaws in evolutionary theory, but you thought the criticisms were outdated, is that correct? A. The flaws, as I saw them, it was pointing to were actually in methods of instruction of evolution theory. And from examples that I had seen, I hadn't seen those examples used in education instruction of evolution at any time that I done it, not when I learned it in 7th grade in the mid 80's to when I was teaching evolution in 2000. Q. Sure. But just to be clear, the video did reflect specific criticisms of evolutionary theory as taught which you disagreed with? A. The video indicated that it was criticisms of evolution education, and I believe it dated as far back as 1950. And I thought that those were outdated examples. We have much better evidence and much more easily understandable evidence to use to teach our children and students about evolution than what was presented in that video. It's not any evidence that I would ever choose to use as a hard core outstanding evidence of evolution. Q. Now you've also testified that Mr. Buckingham indicated there was a think tank that gave the Miller and Levine book an F? A. Correct. Q. Did you ask Mr. Buckingham for the name of that think tank? A. Somebody asked him. I don't recall if I was the one that asked him or not, but that meeting where he mentioned it, the question was asked, what is this think tank? Who is it? He had no response at that point in time. Q. And I believe previously you testified that this think tank came up around June of 2004? A. That sounds familiar, because I believe it was at the June board meetings where he made the announcement that the book was given an F. That's when the idea of it would have come up, yes. Q. Now you testified previously that you believe that Alan Bonsell thinks that teaching intelligent design is not teaching creationism, is that correct? A. Those are the words I heard him say, yes. Q. Apart from the statements that you referenced by Alan Bonsell about teaching intelligent design, do you remember other board members discussing that topic in the June through August 2004 period? A. I wasn't there in any of the August times, so in the June time, there was conversation about the Darwinism comments made about the textbook and the selection of Pandas, and people are looking for a text to balance out the ideas. And intelligent design, I don't recall if it was specifically being used at that particular time or not. While I know there was conversations occurring, that were heated, I don't remember the specifics of, was intelligent design the words that were used. Q. Okay. You also said it's your position that the Board shouldn't dictate curriculum? A. My opinion on that was that they're paying teachers. MR. HARVEY: I'm going to object, Your Honor. Mr. Gillen keeps referring to things he said. And I believe he's going to -- it's unclear whether he's talking about his testimony here now or his deposition testimony. THE COURT: Right. Do you want to clarify the question? MR. GILLEN: I certainly will. BY MR. GILLEN: Q. You've testified in your deposition to your position that the Board shouldn't dictate curriculum, is that correct? A. If that's what's in there, I suspect so. But clarification, it's not that they don't have any say in curriculum, but they need to really base the curriculum approval upon the experts in the area. And I don't believe that nine board members that don't have degrees in science are really qualified to dictate what should be in the science curriculum or not. They are the reviewers. They are the overseers. And they're supposed to check that the, in fact, experts in the area or the people they've hired that are knowledgeable in the area have done their work appropriately. But as far as having the credentials to state that they know that that is science or is not science is not where I believe the Board should be. They're supposed to be the process checkers, making sure that things are done effectively, but not actually dictating what that is. They have the final approval is what their role is. Q. And they have to accept what the science faculty says? A. If they don't accept specifically what the science department states, then they should be looking for an outside source, that is an expert in the area that would have the science credentials to make that statement. And a good place in York County is that we have a lot of university and colleges that have a presence with very large science staffs that were not consulted or listened to. Q. But you do know that Mr. Buckingham referenced the think tank? A. What kind of think tank? He stated, a think tank. Is this a scientific think tank? Q. I'm just asking you, Mr. Rehm, whether you know Mr. Buckingham referenced a think tank? A. He stated that he did. Q. I think you've testified here today that Superintendent Richard Nilsen did not believe or said that he did not believe the curriculum change would come up to a vote in October, is that correct? A. That's what he told me. Q. But you recall attending the October 18th, 2004, board meeting? A. Absolutely. Q. And you recall Alan Bonsell speaking about intelligent design? A. If that's what I said in my deposition or testimony, yes. Right now, unfortunately, all the meetings are blending together again, as they often do. Q. That's understandable. If you would, if you check your deposition at page 118, line 21. A. Okay. Q. And if you would take a look at the deposition transcript beginning with line 13 to give you a little context. MR. HARVEY: I'm just going to ask that the witness be given the chance to read back a few pages to make it clear what meeting he's talking about. MR. GILLEN: By all means. THE COURT: You may go forward and back so that you get the statement in context before you respond to any questions that Mr. Gillen may have for you. After you've done that, just signify to Mr. Gillen that you're ready. THE WITNESS: How far back does this particular go? BY MR. GILLEN: Q. Well, as far back as it takes for you to get comfortable. I can represent to you, this is testimony relating to the October 18th, 2004 meeting. MR. HARVEY: I think if you begin looking at page 115, you can see. THE WITNESS: I saw a mention of October and the decision. THE COURT: Was there a question on the floor? Do you have a question? MR. GILLEN: I do have a question. THE COURT: Did you state one, because I don't recollect. MR. GILLEN: Oh, you know what, Judge, I think you may be right. Let me just put it this way. THE COURT: Why don't you put a question on the floor, and then if you need to read more to answer the question, let's do it that way, because you don't know how far to read because you don't know what the question is. BY MR. GILLEN: Q. Well, I believe I asked you if you recalled Alan Bonsell discussing intelligent design theory at the October 18th, 2004, meeting? A. According to my deposition, I do. Q. Okay. And if you would, Mr. Rehm, just for the record, read in your answer beginning on line 21 of page 118? A. Following the question here, how did you understand those comments -- COURT REPORTER: Could you slow down, please? THE WITNESS: Slow down? Sorry. How did you understand those comments, Brian, when he was talking about a balanced view? Answer, Intelligent design at that point in time, that was the terminology used. We still had the lingering echoes of creationism from June. I don't know that I knew going in what wording would be in place. Do I need to continue there? BY MR. GILLEN: Q. I don't think so. My point is, you've recognized in your prior testimony that Alan Bonsell recognized the distinction between intelligent design theory and creationism, correct? A. In Alan Bonsell's mind, he started communicating it that way, yes. I don't know where he got that. I mean, obviously, I don't perceive it that way. Q. That is obvious. And I'll ask you a question about that. But first let me just talk a little more about the October 18th meeting. You testified in your deposition that you recall Bill Buckingham losing his temper and becoming impolite? A. Yes. Q. You recall Sheila Harkins saying members of the public were out of order? A. Which meeting? Q. October 18th, 2004? A. Possibly. She was not yet president, and I remember her standing up and saying, out of order, which was not her job. It was the board president's job. That's left a mark in my mind. Q. Okay. If you would just turn to page 128? A. 120 -- Q. 8, line 3. A. Line 3? Q. Read up a little higher into 127. A. Where am I to begin? Q. You can begin, I think, to give you the context you'll need, on about line 11? A. Question, prior to line 11. I see that from your answer. Who is left? Sheila Harkins, which I'm not sure now where we're going with this. Q. Let me ask you, as you sit here today, do you remember Sheila Harkins telling members of the public that they were out of order? A. At the October meeting, if that's when it was, yes. Q. Okay. And do you remember that October 18th, 2004, meeting being one with a lot of controversy involved? A. I remember it that way, yes. Q. There were exchanges between the Board and the public? A. As I recall, yes. Q. Do you recall that, at that meeting, Alan Bonsell said that the solicitor had looked at the proposed curriculum change? A. I remember Alan Bonsell saying that at some point, and I followed up, or somebody followed up, with the question, what did they exactly say? And he would not tell us what their wording actually was. So, as a member of the public, at a later point in time, I remember saying, why isn't the solicitor here? We want to hear it for ourselves because we're the ones footing the bill for this. That opportunity never presented itself until much, much, much later. They brought the solicitor in after the new year for a totally separate issue. Q. But he did say, the solicitor had looked at it? A. Yes, he did. Q. Now I think -- A. Can I take that back? I don't know if he said, the solicitor looked at it, as much as the solicitor made a statement about it, gave the board an answer about it. I don't know if that means he looked at it, if he read it, if he heard it. But there was some communication with the solicitor about the statements. Q. Fair enough. Now you testified that during the recess at this October 18th, 2004 meeting, you spoke with Angie Yingling, correct? A. Correct. Q. And she said, more or less, I don't understand what the big deal is, is that correct? A. She did not understand why there was so many people in the public comment section speaking out about concerns about separation of church and state and why intelligent design would be an issue with separation of church and state. Q. And she told you that, in her opinion, intelligent design theory was not creationism, correct? A. I don't recall if I stated that or if she stated that. She was explaining at that point in time she didn't understand why it was a problem. Q. Okay. To help refresh your recollection, I think if you look at your deposition testimony on page 132, line 7? A. Line 7, okay. This is similar to what I testified to today. Q. If you look there at line 1, and again I want you to look far enough to get comfortable here. 131 should give you the context you need. Look it over. A. Okay. Q. Okay. What I'm asking you is, you have testified in your deposition that Angie Yingling told you, I don't see what the big deal is, this is intelligent design, this is not creationism? A. Right. Q. Correct? A. Okay. Those were my words here summarizing the idea she was communicating, but I don't know if those were her exact words. Those were the ideas she was communicating to the person she was speaking to whom I was eavesdropping on. Q. That is what you took from that exchange? A. That is exactly what I took from that change. Q. If you look at 132, you'll see a reference there to Discovery Institute? A. Correct. Q. And you had a discussion with Ms. Yingling about Discovery Institute? A. According to what I was recalling at the time of my deposition, yes. Q. And, Mr. Rehm, as I understand your testimony in your deposition, looking on those pages, if you'd like, essentially you told Angie Yingling that you disagreed with Discovery Institute's position, is that correct? A. Is that what I have worded in here? If that's what I have worded in here, then I'm going to stand by it. I have no reason to disagree with it. I don't know if I knew a hundred percent what Discovery Institute's position is aside from they want to teach the controversy. Q. Well, do you agree that intelligent design is science? A. No. Q. Do you have an understanding concerning whether Discovery Institute takes a position on that issue? A. I don't know what their exact words are, but I'm guessing from the way they promote intelligent design that they believe it is science. And I am guessing from, what is it, the Center for Science and Culture, that that would be their stance on it. Q. Despite the conversation you had with Angie Yingling, she did vote for the curriculum change, correct? A. Yes, she did. Q. You've also testified in your deposition that, based on discussions you had with Bert Spahr, Jen Miller, and Rob Eshbach, that you believe the teachers had agreed to allow Of Pandas in the classrooms as a reference text as a concession to the Board, is that correct? A. Correct. We'll scratch -- we'll do a little bit and then let's drop it. Q. Now you've testified today that Noel Weinrich was initially in favor of the curriculum change that was discussed in the period between June and October of 2004, correct? A. I don't assume that he was in favor of the curriculum change. At the end, he versed his opinion. But when the discussion was about the textbooks and balance, he had originally been speaking in favor of presenting balance. Q. Despite that though, Noel voted against the curriculum change, correct? A. Correct. And his stated reason at the time was he was concerned about possible litigation for the district. Q. I just want to make sure I understand your testimony today. Your oldest daughter is in what grade? A. Ninth. Q. Has she taken biology? A. She is taking it right now with Mr. Linker. Q. Did she stay in class for the reading of the statement? A. It hasn't occurred yet. It will occur sometime in January. Q. Do you know whether she intends to? A. I do not know her intentions, but that will be her choice. I mean, I obviously speak to her regularly about biology and science in general. But she does get to make her own choices in that regard. Q. And apart from the oldest daughter, what's the age of your next child down? A. 1998. This is 2005. No, 1997. Eight. Q. That's faster than I can reckon. That's very good. Let me ask you this. It's plain, you regard intelligent design theory as unscientific, is that correct? A. That is correct. Q. And you regard it as religion, is that correct? A. I regard it as modern day creationism. Q. And that's based on your opinion and your education, correct? A. My science education that it must be testable, must form hypothesis, testable predictions, none of which intelligent design does. And also then taking that beyond that, an intelligent agent, an intelligent designer. Once again, as Dr. Miller said, those are the words that, as a department, we tried to communicate to Alan Bonsell and to the school board at the meetings. We are saying that all before we even knew what Dr. Miller was going to say. So those very closely reflect my understanding and my views. Q. You have a B.S. in science, correct? A. Correct, physics. Q. And you're a science educator? A. Correct. Q. You've also testified that in some of the classes you've taught dealing with evolution, you used a videotape that did discuss creationism, is that correct? A. Yes, it did. MR. GILLEN: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Gillen. Mr. Harvey, do you have any brief redirect or do you want to -- MR. HARVEY: Very brief, Your Honor. THE COURT: Then we can get it in today. Let's do that. MR. HARVEY: Hopefully, just two questions. THE COURT: All right. REDIRECT EXAMINATION BY MR. HARVEY: Q. Mr. Rehm, you testified about a conversation that you had with Angie Yingling on October 18th during the recess on your way out of the building. Do you recall that? A. Correct. Q. Mr. Gillen just asked you some questions about that? A. Correct. Q. Did you say anything in that conversation about a wedge strategy? A. It is possible that I had, but I cannot confirm that. I did become aware of the wedge strategy. I know I knew the wedge strategy prior to November and December, but I don't know exactly when I became aware of the wedge strategy. Q. And did Ms. Yingling later take, to your knowledge, a public stance about her vote? A. Absolutely. She requested at a later meeting to have the policy rescinded. She tried to get, once again, a vote and it did not receive a second. So the vote never occurred. At that point in time, she offered a resignation speech. MR. HARVEY: No further questions. THE COURT: Last round to Mr. Gillen. Did you have any? MR. GILLEN: No further questions, Your Honor. THE COURT: All right. He didn't leave you much scope to maneuver in, in any event. All right. We have, for this witness -- you may step down, sir. Thank you. We have P-46, which again is the newspaper article, and inasmuch as I previously recalled, if you want to formally move it in, you can, and I -- MR. HARVEY: I do want to formally move it in. THE COURT: You're going to object, Mr. Gillen, I assume, so consistent with the Court's prior rulings, we will not admit it at this time without prejudice to revisit that at a later point in time. Now have I missed any exhibits as they relate to any of the witnesses? I think we've picked them up in a timely fashion. Mr. Walczak. MR. WALCZAK: With Dr. Miller, we had moved the admission of Plaintiff's Exhibit 434 as being Dr. Behe's book, Darwin's Black Box. It was called to my attention that, in fact, 434 is just excerpts of that book and the actual book is at Plaintiff's Exhibit 647. So we would move -- THE COURT: 434 is subsumed within 647? MR. WALCZAK: Yes, 647 is the actual book. THE COURT: So 647 would pick up the excerpts. Do you want to move them in? I see no reason to have both. But do you want to just pick up the book? MR. WALCZAK: We can either substitute or just add 647. THE COURT: Let's just add it for the record. We'll add 647, unless there's no objection. MR. MUISE: There's no objection. THE COURT: You didn't object before, so I assume you will not now. We'll admit that as well and the excerpts. Any other exhibits we missed? MR. HARVEY: No, Your Honor. THE COURT: We'll be in recess until tomorrow morning. We will reconvene the trial at 9:00 a.m. on Wednesday morning. We'll start at that point with the Plaintiffs' next witness. All right. Thank you. Have a good evening. (Whereupon, the proceeding adjourned for the day at 4:30 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 3 (September 28), AM Session, Part 1 THE COURT: Be seated, please. Be seated. All right, we commence Day 3, and we remain in the plaintiff's case. Mr. Rothschild, you look most eager, so you apparently are going to take charge as we start Day 3. MR. ROTHSCHILD: Good morning, Your Honor. Plaintiffs are here to call Robert Pennock to the stand. (Dr. Robert Pennock was called to testify and was affirmed by the courtroom deputy.) COURTROOM DEPUTY: Thank you very much. Please state your name and spell your name for the record. THE WITNESS: It's Robert T. Pennock, P-E-N-N-O-C-K. DIRECT EXAMINATION BY MR. ROTHSCHILD: Q. Good morning, Dr. Pennock? A. Good morning. Q. I have placed before you a notebook of exhibits that we may use today. In addition certain of the exhibits will also appear on the screen and on the monitor before you. Where do you live? A. I live in East Lancing, Michigan. Q. And what do you do? A. I'm a professor at Michigan State University. I teach in the Lyman Briggs School of Science, in the department of philosophy, and the department of computer science. Q. Matt, could you pull up Exhibit P-319? Dr. Pennock, do you recognize this document? A. Yes. This is an earlier version of my CV. Q. And when you say earlier, is it accurate as of the date on the CV? A. As of January that's accurate. There's been some changes. I am now a full professor and not an associate professor anymore. Q. And where do you teach? A. At Michigan State University. I'm appointed in several departments. My primary appointment is in the Lyman Briggs School of Science, which is in the college of natural sciences. I'm also in the department of philosophy, and I'm also in the college of engineering and the computer science and engineering department, and also in the graduate program in ecology, evolutionary biology, and behavior. Q. And what subjects do you teach at Michigan State? A. Primarily courses in the philosophy of science, things having to do with confirmation theory, philosophy of biology in particular. I also teach courses in artificial life, evolutionary computation, and issues, related to ethics in science. Q. If I could ask you just to speak up a little bit more for the benefit of the court reporter. What degrees do you hold? A. I hold a bachelors, BA, from Earlham College, a double major in biology and philosophy, and my graduate work was in history and philosophy of science at the University of Pittsburg, Ph.D. Q. Did you write a dissertation? A. Yes, I did. Q. And what was the topic of that dissertation? A. My dissertation was on the nature of scientific evidence in the philosophy of science, the area known as confirmation theory. The specific topic had to do with the nature of what's known as the evidence relationship, what's the notion of relevance between hypothesis and the evidence that tests it. That's the specific area that I was writing about. Q. Can you explain what philosophers of science do? A. Many people ask that question. What philosophers of science do is analyze the basic concepts, assumptions, practices of science and scientists. It's like any other philosophical practice, focused on the nature of the concepts in particular. So philosophy of those subjects, and there are a whole range of them, deals with the concepts, assumptions of that area. So philosophy of science deals with the areas within science. There are subspecialties of philosophy of biology, philosophy of physics, philosophy of psychology, and so on, and each of those cases what we do is look at what scientists say, what they write, the practices that they engage in, to try to understand the concepts that are behind it, and try to in our terms explicate them, which is to say take concepts that may not be systematic, but to try to make them systematic, try to make them rigorous. Q. How do philosophers of science distinguish between science and non-science? A. Philosophers of science focus on what scientists do. If one does philosophy of art, then one looks at what artists do. So our primary starting point is the practices, the concepts of science. So we'll look at the nature of evidence for example, the basic characteristics that we expect to find that we will start with is that science is a practice that deals with examining questions about the natural world, giving explanations about the natural world in terms of natural law, and offering hypotheses that can be tested against the natural world. Q. Have you focused your research and writing on any particular subjects? A. As I said, my general topic of interest is the nature of evidence in science, and the particular case study that I have most focused on over the years has been creationism, and more particularly intelligent design creationism as a way of looking at those issues. Q. When you use the term creationism, what do you mean? A. Creationism as I use it in its general sense is a rejection of evolution as science understands it and a positing instead of that some sort of supernatural non-material intervention. There are many different kinds of creationists, but that's the generic notion when I use it. I also try to be specific about what particular time I'm referring to. It doesn't necessarily have to be a Christian. There are non-Christian creationists. So one has to be specific about the type. Q. And what are the types of creationism that you commonly find in the United States? A. A whole range. Probably the stereotypical notion is what's known as young earth creationism, a view that says one can from scripture perhaps calculate how old the earth is and come to a conclusion that says six to ten thousand years. Other creationists say well, we can accept something much more along scientific lines, you can interpret scripture to allow geological time. So those would be older creationists. Within the camps you then have other differing views regarding other topics such as whether there was a global universal flood that was catastrophic that shaped the world and its land forms. Others would say the flood was local or tranquil. So as I got into researching this topic I very quickly learned that there are many different factions among creationists and that the stereotypical view that we have today, the young earth, ten thousand year old one, is actually just one, though obviously dominant view, but just one of many different views. The old earth creationist's view is actually more somewhat of an earlier view that continues to hold. In the Scopes trial obviously we can think of that as the key example of a creationist's view, but that was the old earth view. It was not a young earth view that Bryan held. Q. Are you familiar with the term special creation? A. Yes. Q. What does that mean? A. Special creation is another general term that's focusing on the issue that the intervention from the creator the designer is periodic. It's a series of special creations, a particular one. The term actually gets used in different ways, and in some cases historically there's a connection that says that special refers to the creation of species. So that it was individual creations of species themselves, special in that sense. But the term is used somewhat inconsistently. Q. What is intelligent design? A. Intelligent design creationism is a movement that attempts to unite these various factions. I think it's best described as a strategy to take disparate views such as the ones that I have mentioned and to unite them against a common enemy. Nancy Pearcey in her recent book on "Total Truth" actually explains this very well. She says that intelligent design is a way for Christians who might be young earth creationists, old earth creationists, progressive creationists, theistic evolutionists, to come together, she mentions how Phillip Johnson specifically created that strategy to allow them to come together to then oppose the naturalist world view of evolution. Q. Is intelligent design creationism? A. Yes. It's a form of creationism. Q. And is it a form of special creationism? A. Yes. They hold that you cannot have a natural explanation of biological complexity and you need to have some special intelligence, non-natural intelligence that intervenes to produce this. Q. I take it from your answers that you have researched intelligent design extensively? A. I've been following this from pretty much the beginning of the movement really for the last fifteen years focusing on intelligent design, but my work on creationism really started before that when it was called creation science, and I sort of watched in part as the transition and language occurred from creation science to abrupt appearance to intelligent design. Q. Describe how you go about you research on these topics. A. My early work was actually inspired in part by a student coming in with the book "Pandas and People," it was in Texas, and it was going to be proposed to be introduced in her school district, and she was concerned about this. It was the first time I had looked at the book. I had also seen Phillip Johnson, I believe the pioneer of the intelligent design movement, give a talk in the early, early parts of this movement, and wrote an article based upon one of his early articles his early book. I was present at a very important conference that they held at Southern Methodist University where many of the current big names came together to articulate some of the meetings for the first time. I read many of their books. I have a large shelf of that, and probably hundreds of their articles. I have attended their talks. So that's the process by which I have come to know them quite well. Q. Who is Phillip Johnson? A. Phillip Johnson is a retired law professor, and he's thought of as like a pioneer most credited with bringing this movement together and crafting a strategy. Q. Not a scientist? A. No. Q. This conference at Southern Methodist University, do you remember who was in attendance? A. It was on the occasion of Phillip Johnson's book "Darwin on Trial," something that was organized around the publication of that book. Some of the names that we now recognize where there are William Dembski, Stephen Meyer, I believe Michael Behe as well. Q. And these are all people involved in the intelligent design movement? A. That's right. Those are the core, among the core leaders of the movement. Q. And they continue to be to this day? A. That's right. Q. Have you written on the subject of intelligent design? A. Yes. I have written probably a dozen articles in various journals, and a book, and I have edited an anthology. Q. What is that book called? A. The book is called "Tower of Babel: The Evidence Against the New Creationism." Q. Could you pull up Exhibit 339 on the screen? Is that the cover of the book? A. Yes. Q. Can you tell us what it's about? A. What it does is look at the arguments of creationism both in its creation science form and in its intelligent design form, mostly focusing on the second, showing what they argue, and, you know, what is wrong with it. So it's a critical analysis of the movement. Q. Did you in this book discuss how intelligent design arguments compare to prior creation arguments? A. That's one of the things that I do in comparison there is show how really, although the terminology is different, the basic concepts underlying it are straightforwardly connected to the earlier view. Q. You also said you edited an anthology? A. The anthology was called "Intelligent Design Creationism and Its Critics: Philosophical, Scientific, and Theological Perspectives." Q. And could you pull up Exhibit 627? Is that the cover of the anthology you edited? A. Yes, that's right. Q. And what's contained in that anthology? A. The goal in that was to have a source book as complete as possible of representative articles from the intelligent design group itself and critical assessments thereof. I focused on articles that they published, and on the critical side some previously published articles, and in some cases new articles that I commissioned for the volume. Q. Have you done any scientific research on the subject of evolution? A. Yes. Some of my current research is on testing evolutionary hypotheses making use of evolving computer organisms. Q. Can you describe in general terms what that research is? A. Sure. The idea is to make use of a system that essentially is an evolutionary system whereby the Darwinian mechanism is implemented in the computer and using that to form experiments to test evolutionary hypotheses. Essentially one is able to watch evolution happen and in replicable controlled experiments test particular evolutionary hypotheses. Q. Has this research been published in a peer reviewed scientific journal? A. Yes, in Nature. Q. Matt, could you pull up Exhibit P-330? Is this the first page of that article in Nature? A. Yes, that's right. Q. And Ken Miller plugged Nature repeatedly in his testimony, but I'll give you the chance as well. Is Nature one of the more prestigious scientific journals? A. Nature, together with Science and PNAS, Proceedings of the National Academy of Science are really considered the top three journals within science. Q. And obviously peer reviewed? A. Peer reviewed journals, that's right. Q. You didn't write this article by yourself? A. This was a collaborative project. My collaborators in this case were two of my colleagues at Michigan State, Richard Lenski, who is an evolutionary biologist. He's most known for his work on experimental evolution using bacteria. He's had lines of bacteria evolving for the last fifteen years that allows one to do experiments to test evolutionary hypotheses in that kind of system. He got very excited about this new system that allows one to test evolutionary hypotheses in a way where things are even faster. Charles Ofria is another colleague at Michigan State. He's in the department of computer science, and he together with Christoph Adami, the last name there, are the two originators of the platform known at Evita. Adami is a theoretical physicist. He's most known currently for his work solving a problem that Steven Hawkings was trying to work on regarding black holes, but he works in this area as well. He at the time was at Tech. Q. At where? A. At Tech Research Institute out in California. Q. I'm going to ask you the same question here that I have asked you in our private meetings, which is these are computer organisms. They're not biological organisms. What can they possibly show about biological evolution? A. They show us how the Darwinian mechanism works. The key thing about them is that it's a model where you have the laws that Darwin discovered, the mechanism of random variation that's heritable, that then can be naturally selected, can be seen, manipulated, experimented with in just the same way, it works in just the same way that it works in the biological case. These organisms, computer viruses if you will, evolve. And so one can set up experiments to watch them evolve and test hypotheses about how the Darwinian mechanism works. Q. Now, these organisms, computer organisms, they didn't arise by themselves, correct? There was a programmer involved? A. Yes. That would have been Charles Ofria particularly, writing we called the Ancestor Program. The Ancestor is simply a self-replicator, an organism that has instructions to allow it to replicate itself, but otherwise is just a series of blank instructions. That's the basic part that, was hand coded. Q. So with that, you know, fact of a human designer, a programmer, how can this teach us anything about evolution in the natural world? A. Our investigations are not about the origin of life. Like Darwin we're not really interested in that particular question. We're interested in as Darwin said the origin of species, the origin of complexity, the origin of adaptations, and what we're able to do in this system is examine essentially what Darwin examined. We're not investigating how life began itself. We're investigating how once that happens, things evolve, evolve complex traits. Q. So just to make sure I understand, this research wouldn't be valuable in any way to coming up with a natural explanation for how the first biological life arose? A. No. It's not at all aimed at that. Q. Does the designer, the programmer, play any role in the development of these computer organisms, like their evolution after that? A. The wonderful thing about this is that we can essentially sit back and watch evolution happen. We'll set up an environment, set up a system, put in place the Ancestor, put in place the original organism, and then within the experimental set-up, depending on what one wants to investigate you'll set it up differently, but essentially at that point we're not going to go in and hand code anything. We're not going to manipulate the code. What happens at the end, if they've evolve some new functional trait, that something that happens by virtue of the Darwinian mechanism. They randomly evolve, they randomly vary, that variation is inherited, and the natural selection then does its work. Q. What advantages does this computer model have over doing research on the subject of evolution with biological organisms? A. It has the advantage of speed primarily, and precision. It allows us to do what you really can do with natural organisms. Lenski's work with E. coli lets one do experimental evolution so one can test hypotheses in that way. It's taken fifteen years, E. coli are pretty fast replicators, but even so, four generations or so a day still is a long time, and your graduate students would never get out and get jobs if you had to wait for that whole process to go through, and what this does is let one watch it happen much more quickly, and then set up very controlled circumstances so that you can really do replications. A controlled experiment is now possible in a way that allows very precise comparison of groups and then statistically significant results. MR. ROTHSCHILD: Your Honor, at this time I'd like to move qualify Dr. Pennock as an expert in the philosophy of science, in the history of science, in intelligent design, the subject of intelligent design, and in his research on the evolution of computer generated organisms. THE COURT: All right. Subject to the stipulation of the parties it's my understanding that you are agreeable to that, although I'll certainly give you the opportunity to conduct any voir dire that you may want to. MR. GILLEN: You're correct, Your Honor. We've stipulated to the qualifications of all the experts with one exception you're aware of. THE COURT: As noted previously, so if you have no questions on qualifications we'll admit this witness for the purpose stated by Mr. Rothschild, and you may proceed then with your direct examination. BY MR. ROTHSCHILD: Q. Do you have an opinion about whether intelligent design is science? A. Yes, I do. Q. And what is that opinion? A. My opinion is that it does not qualify as science. Q. Why not? A. As scientists go about their business, they follow a method. Science is probably most characterized by its way of coming to conclusions. It's not so much the set of specific conclusions that it comes to, but the way in which it reaches them. In philosophy we talk about this as epistemology, it's a way of knowing, and science has limits upon itself. It follows a particular method. It has constraints. It requires that we have testable explanations. It gives natural explanations about the natural world. Intelligent design, creationism specifically, wants to reject that. And so it doesn't really fall within the purview of science. Q. Is there a name or term of art for this rule of science that it must look for natural explanations for natural phenomena? A. Scientists themselves may not use the term. This is something that philosophers of science use, but the term is methodological naturalism, and the idea is that this is a form of method that constrains what counts as a scientific explanation. Q. In his opening defense counsel used the term philosophical naturalism. Is that a term you're familiar with? A. Yes. Philosophical naturalism is one term that's used. Some other terms that one finds include metaphysical naturalism. I've used the term ontological naturalism. The key notion there is a philosophical one about the nature of ultimate reality, the metaphysical notion, and that's not part of science itself. Q. If one were a philosophical naturalist or a metaphysical naturalist, what conclusions does that lead one to? A. A philosophical naturalist would be someone who says the world as it is in its ultimate reality, its metaphysical reality, is nothing but material natural processes, and there is no supernatural, there is no god, there is nothing beyond. A philosophical position, sometimes with subtleties, one might call it a metaphysical naturalist or metaphysical materialist position, but it's a statement about the ultimate nature, the metaphysical nature of reality. Q. And a statement of that nature is not a scientific statement? A. That's right. Science is not in the business of making philosophical metaphysical claims. Q. Some scientists may make those statements, but that doesn't make it science? A. That's right. Q. How did science adopt this rule of methodological naturalism? A. As I said, the term itself is something that philosophers have used. So one really has to go back and sort of see how that method, that concept arose, and it really arose in fits and starts. It's not as though one can point to a particular time, but it's a change that one can really trace back even to the pre-Socratics, we sometimes point to Hippocrates for example as one of the early glimmers of this type of view with regard for example to the nature of disease. An earlier view would have said that a disease is the result of some perhaps possession by some supernatural, divine, or demonic being. Q. Can you give us an example of that? A. Yes. Epilepsy was the example that Hippocrates dealt with. It was called the sacred disease. The idea was that it was kind of divine possession when one went into an epileptic seizure. Hippocrates suggested that we should not think of it in that way but just think of it as a normal illness and try to find a normal, natural way of curing it. As he talked about epidemics, again epidemics would have been things that under some non-scientific ways of thinking about it they're the result of displeasure of God perhaps, and Hippocrates said we should try to find by cataloging natural regularities try to find causes for epidemics. So that's sort of an early inkling of this, and it's not as though this then set root and established everything. One go through really century by century before one finds these things being teased apart. So for example really in the 13th through 15th century one finds alchemists, people doing supernatural magic, trying to think that one can find ways of overcoming the laws of nature by appeal to supernatural entities and so on. And a switch that kind of happened of the same sort where people suggested well, maybe there are just hidden regularities that we don't yet know about that are actually natural explanations for these apparent magical things. So they talked about the natural magic, and the idea then was let's think about what these might be. Now, it's not as though they got things right. Facchino was one 15th century natural magic proponent who thought that influences from the planets of particular sorts could explain events on earth. He wasn't thinking of these as supernatural. He thought of them as natural, but that they could be controlled by other material, talismans for example. So there you're getting this notion of a method that assumes natural regularities and appeal to those as coming out. Really this gets much more firmly established then in enlightenment and scientific revolution. That's probably what's most characteristic of the scientific revolution, rejecting appeal to authority and saying we will appeal just to nature itself. We'll appeal just to the evidence, the empirical evidence. And it's very clear at that point then that when one does science, one is setting aside questions about whether the gods or some supernatural beings had some hand in this. A classic example had to do with meteorological phenomenon, lightning. It would have been thought or that lightning perhaps would have been an expression of God's displeasure, right? That God by design would send lightning somewhere, and it was one of the founding fathers, Benjamin Franklin of course, who investigated lightning under this assumption of methodological naturalism and said you can have a natural explanation of lightning, it's electricity. And that's an example of this shift, a shift as saying we're not going to say what God may or may not be doing with sending lighting bolts. We'll simply say let's examine this as part of the natural laws of nature. Today this is just firmly entrenched. Several month ago I did a literature search to see if I could find whether scientists might be reintroducing the supernatural, the transcendent into their work, and I did find the supernatural in there in one sense. It was considered by folks who were doing work, research on medicine, and wondering about how we could better get patients to follow a medical regimen, follow their medications, and it turned out that the beliefs that patients had about the supernatural played a role. And so in that sense they had to consider it, people believed this, and so they had to understand that in order to help them better follow their therapies for example. The single case where I found, though, where it was proposed as the supernatural should be introduced in some way was in an alternative medicine journal, and in that case the author specifically said, "But to do so of course would be to take this out of the realm of science, and I'm not proposing that." Q. So methodological naturalism is basic to the nature or science today? A. As I said, I could not find an exception to that. Q. And the rule is well accepted in the scientific community? A. That's right. Q. Why is this methodological rule important for science? A. Well, it's important in the sense that I just described that it's part of what it means now to be a scientist. If one were to start appealing to the supernatural, one would immediately get the reaction from one's colleagues this is no longer part of what it is to be a scientist. So part of it is just essential to the notion. Philosophically it's important in the sense that it's relevant to the justification of conclusions, of scientific conclusions. What one expects in science is that one is going to be testing hypotheses against the natural world, and what methodological naturalism does is say we can't cheat. We can't just call for quick assistance to some supernatural power. It would certainly make science very easy if we could do that. We're forced to restrain ourselves to looking for natural regularities. That's part of what it means to be able to give evidence for something. You've undermined that notion of empirical evidence if you start to introduce the supernatural. And then the second part of that is it's important because it makes a difference. Okay? That then allows you to practically apply the results of scientific inquiry. When you discover these natural regularities, these causal regularities, you're then able to use them in pathology and so on, and to just take it back to the example of Franklin, Franklin's naturalistic, let's say methodological naturalistic understanding of lightning then led him to be able to invent the lightning rod, which then was a very practical way of stopping buildings from being hit by lightning. So thatÕs a sense in which this is crucial, because it makes a difference. It lets us apply the conclusions, the discoveries that scientists make. Q. Is the theory of evolution an example of utility of methodological naturalism? A. I actually recommend that science teachers use evolution as a great exemplar of the application of scientific method. It's a well confirmed interlinked series of hypotheses. It's not just one hypothesis, but a whole range of them, that have been tested and well confirmed, and in the same way that I was describing before, it has practical utility. One can make use of evolutionary knowledge, as scientists do in a range of fields, to social utility. One needs to know it with regard to medicine, and even with regard to engineering applications, now one can make use of Darwin's mechanism to allow engineering designs to evolve. So there's practical applications to evolution right now. You can get a job at Google if you know something about evolution. They're looking for people who know about this. Q. And the theory of evolution has been able to come up with explanations and useful conclusions without appeal to the supernatural? A. That's the basic presumption. That's the way evolution works, the way science works generally. Evolution is not exceptional in this case. It's really exactly the same as any other sort of science. We test it in the same way, and we can apply it in the same way. Q. Do leaders of the intelligent design movement agree that science as it is currently practiced includes the rule of methodological naturalism? A. They do, except that it includes methodological naturalism, and really their primary goal is to try to overturn that. Q. Are you familiar with someone named William Dembski? A. William Dembski is one of the intelligent design leaders that I have mentioned and researched. He's someone who is very much at the forefront of this movement. Q. And is he one of the people who has asserted this position that intelligent design needs to overturn the rule of methodological naturalism? A. Yes, he has. In a number of different places he's explicitly discussed the importance of this and how intelligent design has to be able to overturn this in order to move forward. Q. And I'm going to show you some of Dr. Dembski's writings. And have you highlighted particular portions of those writings that emphasize this point? A. What I did was just take a representative selection to try to indicate the way in which he describes this. Q. Could you pull up Exhibit P-343 please, Matt? And do you recognize this cover here? This is a cover from one of William Dembski's several books, "The Design Revolution: Answering the Toughest Questions about Intelligent Design." And is this a book you have read? A. Yes. Q. Could you turn to page 19 of this book please, Matt? And could you just illuminate the passage that Dr. Pennock highlighted? Could you read that into the record? A. So this is Dembski writing, "Nonetheless," he says, "there is good reason to think that intelligent design fits the bill as a full scale scientific revolution. Indeed not only is it challenging the grand idol of evolutionary biology, Darwinism, but it is also changing the ground rules by which the natural scientists are conducted. Ever since Darwin the natural sciences have resisted the idea that intelligent causes could play a substantive empirically significant role in the natural world. Intelligent causes might emerge out of a blind evolutionary process, he says, "but they were in no way fundamental the operation of the world. Intelligent design challenges this exclusion of design from the natural sciences, and in doing so promises to remake science in the world." Q. Could you now go to Exhibit 341, Matt? Do you recognize this cover page here? A. This is another one of William Dembski's books, "Intelligent Design: The Bridge Between Science and Theology." Q. And have you read this book? A. Yes. Q. Could you turn to page 224 of this book please, Matt? Could you illuminate the passages that Dr. Pennock has highlighted? Could you read this statement into the record? A. Here Dembski writes, "The scientific picture of the world championed since the Enlightenment is not just wrong, but massively wrong. Indeed entire fields of inquiry, including especially the human sciences, will need to be rethought from the ground up in terms of intelligent design." Essentially heÕs telling us that we need to reject what it means to be scientists and start over. Q. And just one more exhibit on this point. Could you pull up Exhibit 359, please? And if you could illuminate the title and author? Do you recognize this document? A. Yes. This is an article from, by William Dembski, "What Every Theologian Should Know About Creation, Evolution, and Design." Q. And have you read this article? A. Yes. Q. Could you turn to page 7 of the document, Matt, and illuminate the passage that Dr. Pennock has highlighted? And could you read that highlighted passage into the record? A. Dembski writes, "The view that science must be restricted solely to purposeless naturalistic material processes also has a name. It's called methodological naturalism. So long as methodological naturalism sets the ground rules for how the game of science is played, is to be played, IDT has no chance," Hades, I assume no chance in Hades. Q. What do you understand Dr. Dembski to be conveying in that passage? A. What he's saying here is pretty clear, that if you take science as science, that intelligent design theory has a snowball's chance, and they need to change the ground rules. They need to change what science is, that, you know, science is hard. It requires that one test things. One always says as the scientists know, where's the beef, show us the evidence. It's I suppose hot in the kitchen, and I guess what they're saying is if it's too hot and they won't survive in the kitchen, and one might say well, if the kitchen too hot, go elsewhere. Q. Specific reference to a hot kitchen there. A. Exactly. Q. Could you turn to page 8 of the article? And again highlight the passage? And could you read that highlighted passage into the record? A. Here he writes, "In the words of Vladimir Lenin, 'What is to be done?' Design theorists aren't at all bashful about answering this question. The ground rules of science have to be changed." Q. And I have to admit I didn't know until I read that that Vladimir Lenin was part of the intelligent design movement, but putting that aside these passages summarize the position that intelligent design takes about scientists' rule of methodological naturalism? A. They're quite clear. They admit that these are the ground rules of science, and what they want to do is revolutionize that. They want a theistic science. Q. What would it mean for science if intelligent design's project of overturning methodological naturalism was successful? A. Essentially what this would be, what this would mean if they were to succeed in this project would be that it would turn back us to an earlier era, a pre-Enlightenment era, an era that I was speaking about before, before we had teased apart these differences, and that would be a really radical change. It would be a number of steps backwards. Q. Are there any other reasons besides this rejection of methodological naturalism that intelligent design does not, the intelligent design argument does not qualify as science? A. I point to one other particularly important one which is connected to the first and one that I have already mentioned indirectly, which is the importance of testing. Intelligent design needs to have for it to be a science a way of offering a specific hypothesis that one could then test in an ordinary way. They failed to do that, and so they really don't get off the ground with regard to science. Q. Well, doesn't intelligent design have some arguments like irreducible complexity and specified complexity? A. The notions of irreducible complexity, specified complexity, or as it's sometimes called complex specified information, these are characteristic terms. In a way there's, they're new terms for old concepts. Creation scientists had similarly made criticisms of the possibility of evolution to produce complex features. The particular challenges from irreducible complexity or specified complexity are challenges to evolution and its ability to produce adaptations to produce complexities of certain sorts. Their claim is evolution can't do it. Systems that are "irreducibly complex" or have specified complexity are supposed to be by them impossible to produce through Darwinian mechanisms, or indeed any natural mechanism. So it's a challenge to evolution. Q. Is it a positive argument in favor of intelligent design? A. It's like the creation scientists before in attempt to say here's something that you can't do. It's an attempt to poke holes in evolution itself. Q. And what's wrong with that as a way of demonstrating the proposition you support? A. One would expect as someone who is offering a particular hypothesis, if one were to do that, that you would give evidence directly in support of that rather than simply trying to knock down one's opponent with the hope that one would be left standing. The way in which this was done in the earlier iteration of creationism was to propose that there were two views. In that sense it was called creation science. Evolution science, and creation science has said here are some things that science can't explain, that evolution can't explain, with the hope of casting doubt upon evolution. What would then be left standing, well, there's would be, you wouldn't have to say anything positive about that. Now the terminology has changed. Now it's intelligent design theory versus Darwinism, but the logic of the argument is exactly the same. It's here's what's wrong with you, here's something that purportedly you can't explain, and we're going to be the ones then to be left standing. Q. And is there a logical problem with that kind of argument? A. It's an example of a false dichotomy. It's an example of in the previous iteration we called it the dual model argument, as though there are only two positions, and that by knocking down one the other is left over. But of course it's a false dichotomy. There are many other positions besides Darwinism, and there are certainly many other positions besides intelligent design. Q. Are irreducible complexity and specified complexity associated with particular individuals in the intelligent design movement? A. Irreducible complexity is most associated with Michael Behe. Specified complexity is most associated with William Dembski. These are interrelated concepts though. Specified complexity is the more general form. Dembski directly though says that irreducible complexity is a type of, a case of specified complexity. Q. Does your work on computer organisms address these arguments of irreducible complexity and specified complexity? A. Yes, it does. Q. Can you just describe for us briefly how it does that? A. Sure. The claims that are made with regard to these two concepts are as follows. Systems that exhibit or that purportedly exhibit irreducible complexity or specified complexity, actually at this point let me just focus on irreducible complexity, because since itÕs an example of specified complexity, any conclusion that we can get with regard to irreducible complexity would also deal with specified complexity. So we can just focus on that. So the claim is any system, Behe's example is a mouse trap, so it doesn't have to be a specifically biological system, just a very general argument, any system that is irreducibly complex, thus to say has interacting parts that are well matched to introduce a function, such that if you remove any of those parts, it breaks, stops functioning, doesn't produce that basic function, is an irreducibly complex system, and such systems the claim is couldn't have been evolved through a Darwinian mechanism. What our system shows is that's just wrong. We can observe digital organisms evolving by the Darwinian mechanism, starting with an organism that cannot produce some effect, cannot fulfill a function, doesn't have this possibility, and later on evolve to the point where it can, some complex trait that we can then examine. The nice thing about this system is it lets one look at it very precisely, we can look inside and see does it fulfill the definition? In fact, it does. We can test to see, remove the parts, does it break? In fact, it does. And we can say here at the end we have an irreducibly complex system, a little organism this can produce this complex function. But the nice thing about the system is that we can look back and see in fact it did evolve. We can watch it happen. So it's a direct refutation of that challenge to evolution. Q. Is that point addressed, put forward in the Nature paper? A. It's not. The Nature paper itself is meant just to be a test of a general evolutionary hypothesis, examining how it is that complex features arise. Darwin had specific things to say about that. What we were doing was simply looking into that, testing it in a way. It just turns out that it also applies to this case. Q. Still on the subject of Michael Behe, but in a slightly different way, if you could pull up Exhibit 602? This is the expert report by Michael Behe that was provided to plaintiffs in this case. And could you turn, Matt, to -- actually if you could display both pages 9 and 10 of the report, and highlight the language that I asked you to last night? In this report Dr. Behe lists five claims for the theory of evolution made by the renowned biologist Ernst Meyer. Evolution as such, common descent, multiplication of species, gradualism, and natural selection. And if you could now turn to page 11, and highlight the underlined language in the report? Dr. Behe asserts, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose. In other words, intelligent design focuses exclusively on the fifth claim of Darwinism, natural selection, in Ernst Meyer's list on the preceding page and does not concern any of the other claims." Is that an accurate characterization of the claims of intelligent design? A. I would say not at all. I'm very surprised to seeing something put in that way. Intelligent design creationists have written about and explicitly dealt with far more than just the proposed mechanism, the Darwinian mechanism. They have claims rejecting a range of biological theses from evolution, including common descent, and really things from physics, cosmology as well. So they focus far more than just this point. Q. On the issue of common descent, do you know what position the book "Of Pandas and People" takes on that topic? A. "Pandas and People" quite explicitly says that we should not take common descent, it's not accepted. So it's rejecting that. Q. Just we got quite a biology lesson and evolution lesson from Dr. Miller over the past couple of days, but what do you mean by the term common descent? A. Common descent is sometimes talked about in terms of the metaphor of the tree of life, the idea that the organisms, the species that we see today are the result of common ancestors. So they descend through a pathway that has common points of origin. Q. And as William Dembski taken a position on whether common descent is a valid proposition? A. Dembski is one of the design theorists who has rejected that. Q. And let me just ask, Matt, to pull up Exhibit 323, and I think we looked at this article earlier, but could you turn to page, and this is the article "What Every Theologian Should Know About Creation, Evolution, and Design," would you turn to the page Bates stamped R-214 and highlight the language Dr. Pennock asked you to highlight? Could you read that passage into the record from Dr. Dembski's article? A. Dembski writes, "Yes, I do believe that organisms have undergone some change in the course of natural history, though I believe that this change has occurred within strict limits and that human beings were specifically created." This is really language that is exactly the same really as from the creation science literature, excepting small changes within strict limits, sort the micro-evolution, but requiring a rejection of common descent in speciation for example. Q. If human becomes were specially created, at least in their case there was no common descent? A. That's correct. Q. Does intelligent design make claims about the age of the earth? A. Intelligent design as I mentioned before is often claimed to accept the scientific age of the earth, but that's not correct. Intelligent design as I mentioned before as Nancy Pearcey described it and as you see from the literature is a view that unites young earth creationists and old earth creationists, and so individual folks who would identify themselves as themselves design theorists, some of them would take a young earth view, some of them would take an old earth view. So it's not correct to say intelligent design is old earth if it accepts that, and they have explicitly written about this in many cases but agreed to set that aside temporarily until the initial proposition that organisms were designed, that they were created, is put into place. Phillip Johnson talked about how after we established that, after we've gotten the thin edge of the wedge in, then we can have a great time talking about how old the earth is, and that together with common descent is something that they have explicitly said should be appropriate to be considered in public school science classes under the heading of intelligent design. Q. And just on this point of Phillip Johnson, if you could pull up Exhibit 338? And this is an article in the magazine "Christianity Today," if you could first turn to the article, do you recognize this document? A. Yes, this is an interview with Phillip Johnson. Q. And could you turn to page RP-184 and highlight that passage that Dr. Pennock asked you to? And could you read that into the record? A. So the introductory paragraph says, "In spite of the division between religious believers, University of California law professor Phillip Johnson, whose books critique Darwinism, says Christians should set aside internally divisive issues and focus on establishing the credibility of a theistic world view. Johnson told CT," that's to say Christianity Today, "people of differing theological views should learn who's close to them, form alliances, and put aside divisive issues until later." He says, "I say after we have settled the issue of a creator, we'll have a wonderful time arguing about the age of the earth." Q. From a scientific perspective does this agnosticism towards the age of the earth, is that problematic for intelligent design? A. It's an example of a general problem with the view to say we just won't say is the earth six thousand, ten thousand years old, or 4.5 billion. You know, that's a big difference. And one can't remain neutral on that. The sciences are interconnected, and hypotheses, biological hypotheses, in order to test them have to rely upon what we've learned from other sciences as well. We make use regularly in biology to information that we get from geologists to information that we get from physicists, and vice versa as well. One can't just set aside the issue of this huge difference between six thousand and 4.5 billion and say well, we just don't take a stand on that. You have to be able to say here's is what we can take from what geologists have discovered and then make use of with regard to testing, confirming biological hypotheses. Young earth creationists are of course pretty much concerned that you could quickly reject evolution. They like this idea if there's only six to ten thousand years old, then of course that would reject the possibility of evolution. That would falsify it right away. You couldn't get the Darwinian mechanism in that short time to produce this. The strategic silence on this issue is a sign of just how far this is removed from the ordinary basic practice of what one has to deal with science. Science is interconnected. Q. Darwin's theory of evolution with small incremental steps is somewhat more plausible or tenable if there were 4.6 billion years to act than six thousand years? A. It's sometimes said by creationists that evolution itself can't be tested, can't falsified, and of course this is an example to show just why that's wrong. If the world is really only six thousand years old, that would falsify evolution. Q. But that's not what the geological record says? A. But that's not the case. Q. Is intelligent design a religious proposition? A. Yes, I believe it is. Q. Why? A. Really for the same reason here that by insisting upon this basic proposition that the features of the natural world are produced by transcendent, immaterial, non-natural being, that's by itself a supernatural, a religious proposition. Q. Have intelligent design leaders actually described intelligent design as a religious proposition? A. In many different ways they have. As I said, the terminology has shifted over time, and it also shifts depending upon who intelligent design creationists are talking to. If they're talking to the press they will say one thing, but if they're talking to a church group they will be more explicit. The terms have varied. Now we most hear intelligent design theory, but at other times it's been talked about not as the design hypothesis but as the creation hypothesis or even the God hypothesis. So there are lots of examples of that. Q. Could you pull up Exhibit 332, Matt? Do you recognize this document? A. This is an article from Stephen Meyer, "The Return of the God Hypothesis." Q. And who is Stephen Meyer? A. Meyer is one of the core intelligent design leaders. He's currently at the Discovery Institute directing the center for science and culture. He was also one of the "Pandas and People" authors. Q. And this article is obviously called "The Return of the God Hypothesis"? A. And what he does here is describe how it is that this new movement is able to bring this back, the God hypothesis. Q. Call you pull up Exhibit 328? Do you recognize this document? A. This is a review essay from Phillip Johnson of a book, "The Battle of Beginnings: Why Neither Side is Winning the Creation Evolution Debate," by Dell Ratzsch. Q. And could you turn to page RP-63 in the document and highlight the passage Dr. Pennock asked you to? And could you read that passage into the record? A. Here's Phillip Johnson describing intelligent design. He says, "My colleagues and I speak of 'theistic realism, ' or sometimes mere creation, as the defining concept of our movement." That's to say of the intelligent design movement. "This means that we affirm that God is objectively real as creator, and that the reality of God is tangibly recorded in evidence accessible to science, particularly in biology." Q. Is intelligent design a universal religious view, or is it hostile to some religious views? A. In some sense it's generic enough that some other religious traditions can accept it under the umbrella where we will speak about other things later, but intelligent design is also explicitly hostile to other particular religious views. It takes a stand for example rejecting what philosophers sometimes call theistic evolution, a compatibilist position that allows that evolution is true as science has discovered it, but also accepts belief in God. They reject that position. Q. Are there particular individuals who have rejected that? A. One can find many such examples from a range of folks. William Dembski in particular has quite explicitly said intelligent design theorists are no friends of theistic evolution. Q. And just to be clear, is theistic evolution a scientific proposition? A. No, and that's actually important to say. Science is neutral with regard to these sorts of issues, and this isn't something that one would teach or discuss in a science class. Whether or not something is compatible with a particular religious view, that's a theological view. You might talk about that in a theology class or a comparative religion class, but that's not part of science itself. Q. Proponents of intelligent design claim that intelligent design is not religious because it does not name the designer or describe how or why it carried out the design. Why doesn't that rebut your argument that intelligent design is religious? A. It's always important in philosophy to focus upon the concepts rather than simply the terms that are used, and even if one doesn't explicitly say God, although as we have seen they do indeed say God directly in many cases, but even if one were to leave out that word and simply say we're speaking of a transcendent non-natural being or power, that by itself is what we would call a direct description. It identifies a religious concept. Even if one doesn't exactly say the name, one still has the concept there. It's like saying well, I didn't say Valerie Plame Wilson. I simply said Ambassador Wilson's wife. That's a direct still identification of an individual. THE COURT: To use a popular example. A. Just as an example. Q. Another argument that we hear from the intelligent design movement is that, and if you could pull up "Pandas," which is Exhibit 11, and actually turn to page 7 of the book, is that -- you see the writing "John loves Mary" in the sand on the page of "Pandas" there, that writings like "John loves Mary" or something like the statue of Mt. Rushmore or an archaeological object is regularly concluded that those things were designed, and we're just doing the same thing here for biological organisms. Why isn't that argument valid? A. This is a pretty common misunderstanding about what science does. It's not the case that you don't speak about design in science. We do so quite regularly. Archaeologists will unearth artifacts, and by looking at them and examining them will try to draw some conclusions about the civilization that created them. Forensic scientists will look at evidence and say, you know, here's who done it. So this is very common to draw those ordinary sorts of design inferences in science and just in ordinary life. But that's of course not what's at issue. We do that through ordinary means under the presumptions of methodological naturalism. That's not what is at issue here. That's very, very different from drawing the conclusion about a transcendent supernatural being. We really don't have any grasp upon that. Q. So when we do that for example, for a stone object that an archaeologist is trying to determine is this something that was the product of erosion or is it a tool, do archaeologists make some conclusion about who did that? A. In ordinary cases that would be one of the first things that one would ask. In examining an artifact we're able to draw conclusions about when it was created. We're able to draw some conclusions perhaps about who did it, what civilization it was, something about why they did it perhaps. These are pretty standard questions one would ask. In fact, they're natural questions one would ask with regard to ordinary notions of design, natural notions of design, under the normal presumptions of methodological naturalism. Again there's nothing unusual about that, but that's not what's being posited by intelligent design theory. This is something that's removing those constraints. Q. And in the case of an archaeological object we also draw some conclusions about how it was done? A. That's right. We know something about other human beings, we know something about their motives, we know something about their interests, we know something about their causal properties. We know lots of background information that allows us to say here's what we can conclude about who did it, when, where, why, how, those natural sorts of questions that we would ask. Q. And all those questions which all the media in the audience ask every day. Who, when, where, why, are those questions that intelligent design answers? A. They'll explicitly say design can tell us nothing about who the designer was or anything about the designer's characteristics or motives, and that's really just a sign of how disparate this concept is from the basic scientific notion where those would be among the first things that one would offer and then get evidence for. Q. Intelligent design also argues that their work is similar to the SETI project, the Search For Extraterrestrial Intelligence. Are you familiar with SETI? A. Yes, this is a topic that I sometimes used as a case study in some of my courses. Q. Do you know how the SETI project works? A. What SETI scientists attempt to do is see if they can find evidence of extraterrestrial beings, that is to say beings on other planets. They search for signals from other planets that might be an indication that there are beings there who would be sending such a signal. Q. And what kind of signal are they searching for? A. I have got this information secondhand, I'm not a SETI scientist myself, but in talking to SETI scientists, particularly a SETI scientist who was addressing the question about whether their work was like intelligent design, explain that they don't do anything like is claimed of them. They're not looking for Pi to be found and so on. They're looking for a very simple signal, they sometimes describe it as a whistle. The key thing is it's an artificial signal, something that we produce ourselves, that we know something about, a radio signal that's focused in a certain way. And they quite explicitly said this isn't at all like is being claimed of us by intelligent design theorists. Q. One more question. During his opening argument defendant's counsel argued that the Dover policy which presents intelligent design as a scientific concept in the science class is the essence of liberal education. Do you agree with that assertion? A. I don't. Q. Why not? A. It's true only in the sense that, and as a philosopher I'm actually happy with this sense, the classic liberal arts includes philosophy, it includes theology, and in that sense certainly this is a part of that. We talked about the design argument in its classical theological sense, arguments for the existence of God, very regularly in a philosophy class or in a theology class or a comparative religion class. So in that sense, sure, it's part of a classical liberal education. But the liberal arts and sciences as we understand them now differentiate that aspect of the liberal arts from the sciences. The sciences has its own characteristic method, and to take these sorts of arguments, which properly belong in this other area, and claim that it's science I think really undermines the very notion of a discipline. There is a rigor that's important to careful thought, and that's what the liberal arts attempts to instill, a kind of systematic way of thinking, and it says there's something about a discipline that's critical that should be respected. This could certainly be respected within those other kinds of classes. I regularly talked about them. This is actually a very common thing to discuss in the philosophy class, theology class, comparative religion class, but not a science class. In that sense it would not at all be a liberal education. MR. ROTHSCHILD: Thank you, Dr. Pennock. I have no further questions. THE COURT: All right. Thank you, Mr. Rothschild. This would be a good time to take our customary mid-morning break for at least twenty minutes. We'll do that now, and we'll stand in recess and we'll pick it up with the cross examination of Dr. Pennock. (Recess taken at 10:17 a.m. Trial proceedings resumed at 10:45 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 3 (September 28), AM Session, Part 2 THE COURT: Be seated, please. It looks like Mr. Gillen is up, and you may proceed with cross examination. CROSS EXAMINATION BY MR. GILLEN: Q. Thank you, Your Honor. Good morning, Dr. Pennock. A. Good morning. Q. Pat Gillen. We met at your deposition, and I'm here today to ask you a few question. A. Good to see you again. Q. Thank you, same here. You know, you did miss Ken Miller's testimony which Mr. Rothschild referenced, and it was quite a show, but let me ask you this. I learned something from Dr. Miller's testimony that I didn't know before, which is that Ken Miller believes that God is the creator of all things seen and unseen, and I ask you this. That doesn't make Ken Miller an intelligent design creationist, does it? A. I'm sorry that I didn't get to hear Ken himself. I feel like one follows dogs and children, you know, you don't want to do that. You also don't want to follow Ken Miller. He's a hard act to follow. And I don't know the way in which he put that, so could you say again what that -- Q. My request is this. Does Dr. Ken Miller's belief that God created all things seen and unseen make him an intelligent design creationist? A. No, it doesn't. Q. Okay, and that's because the religious beliefs of a given person doesn't determine whether or not that person is engaged in science, is that correct? A. This express belief in a creator is compatible with evolution, and so that he believes that or that another one doesn't is not substantive to that. Q. In fact, I believe some people describe that position as theistic evolution, the notion that evolutionary theory is consistent with their religious faith, is that correct? A. That's right. Theistic evolution is sometimes used inconsistently though. Occasionally it is used in the literature to refer to a creationist type belief. That distinction I think is better, the term that's is better used is evolutionary creationism in that case. So sometimes theistic evolution is misused in that way, but the way that you're using it and the way in which you've described it is correct, compatibilist view. Q. Thank you. And that doesn't make, Dr. Miller's beliefs doesn't make evolution a religious theory, correct? A. That's right. Q. And that's because a theory doesn't become scientific or not scientific based on whether persons discuss whether it's consistent with a given set of religious beliefs, is that correct? A. The way in which one holds a position, articulates a position is relevant. So you have to look at exactly what they say. Sometimes people will make and hold a theistic view and claim that it's science. Other times you will speak of it as separate. So you have to look specifically at what people say with regards to that. Q. But a theory doesn't become scientific or not scientific based upon whether its proponents have discussed its consistency with religious beliefs, is that correct? A. When a person discusses whether or not the content of a view is consistent or not, right, at that point one is, it should be clear as to whether one is speaking qua scientists or qua philosophers say, and as long as one is clear about that then that's quite fine. One should not say qua scientist that this is so or not theologically. Q. Well, is it your testimony here today that as theory becomes scientific or not scientific depending on whether a proponent has discussed its consistency with religious beliefs? A. To determine whether a theory is scientific or not you have to look at the content of that theory itself. Q. Is it your opinion -- A. So the proponents of that theory would be what they've said is going to be relevant when you find out about what that theory exactly says. Q. And forgive me for interrupting you. Is it your opinion that a theory can become non-scientific because a proponent has discussed its consistency with religious beliefs? A. Again my point has to do with what people say substantively. So it depends on what they say when they discuss its consistency. If they discuss substantively theological content, then that's part of the content of the view, then that is relevant. MR. GILLEN: If I may, Your Honor, I'd like to ask the witness to examine his deposition testimony. THE COURT: You may. MR. GILLEN: Thank you. May I approach? THE COURT: You may. BY MR. GILLEN: Q. Thank you. Dr. Pennock, I have given you copy of your deposition which I took on Tuesday June 14th, 2005, and I'd ask you to look at page 51 of your deposition testimony, line 10. Have you had a chance to -- A. I have found it here, yes. Q. Okay. If you look at page 50, on page 9 I asked you a question, "Concretely do you think that a theory would be properly classified as not scientific if a proponent of that theory discussed its metaphysical implications?" And you asked me to ask that question again, and then you gave an answer. Would you look that answer over? A. At line 13? Q. Yes. A. Uh-huh. Q. I ask you again today, is it your opinion that theory becomes scientific or not scientific based on whether someone has discussed whether the theory is consistent with religious beliefs? A. And as I said there, if the discussion is merely is it consistent or not, that by itself does not make it so. Q. Okay. For example, the Big Bang theory is not a non-scientific theory, even though it's consistent with some people's belief in creation out of nothing, is that correct? A. As a scientific theory the Big Bang itself is not a religious view, that's right. Q. Dr. Miller also noted that he had a friendship with Richard Dawkins, and it was brought to his attention that Richard Dawkins in his book "The Blind Watchmaker" had made the assertion that Darwin made it possible to be an intellectually fulfilled atheist. My question to you is it's true that Dawkins' observation along those lines doesn't mean that evolutionary theory is a religious theory, is that correct? A. That's correct. Q. And he's engaged in what's sometimes called metaphysical extrapolation, is that correct? A. I don't see in that statement that he's giving metaphysical extrapolation. The quote that you have is one that's commonly quoted, makes it possible to be an intellectual fulfilled atheist, so that's simply saying something about his own comfort. Q. I understand. A. So it's not as though he's saying this proves atheism or something of that sort. It allows one this state of mind. Q. In your opinion is atheism a scientific theory? A. No, it's not. Q. And Dawkins' observation doesn't make evolution a non-scientific theory? A. That's right. He's not saying that this is something that is part of the contents of the theory at all. Q. And that assertion on Richard Dawkins' part is not a scientific assertion? A. The assertion there is not saying something about the content of the view qua scientist, that's right. Q. And when you look at Dawkins' statement, it makes it very evident that not everything that comes out of a scientist's mouth is science, correct? A. That's correct. Sometimes people will speak qua scientist and sometimes they will speak about something from their own personal views. Q. Now, Ken Miller is a friend with Richard Dawkins, who engaged in this, who made this statement, and Ken Miller as I have told you has testified here in court that he believes God created all things seen and unseen. That association between Miller and Dawkins doesn't make evolution a non-scientific theory, correct? A. That association and the fact that they are friends? Q. Yes. A. No, I think one should be friendly as possible with people of all beliefs. Q. Sure. And the fact that one of Dr. Miller's friends has engaged in a non-scientific statement about his view concerning the possible implications of evolutionary theory doesn't mean that Ken Miller isn't engaged in science, correct? A. The fact that he's referring to conversations you're saying with Dawkins? No. Q. Connections with religious organizations don't make a scientific theory non-scientific, correct? A. Connections of the theory to a -- Q. No. Connections of a given individual who proposes a given theory with a religious organization don't make a scientific theory non-scientific, do they? A. Unless it's something where the theory is, includes the content of this, but the mere association does not. Q. So, for example, Ken Miller indicated to the court that he's a Roman Catholic. That doesn't mean because he's affiliated with the Catholic Church that evolutionary theory is a non-scientific theory, correct? A. That's right. What one looks to is the statements about the theory itself. What is its substantive comment. So my commence here with regard to intelligent design had to do with the contents of view, statements like that of Nancy Pearcey, who says that what intelligent design allows one to do is in her view sit in what you call it the supernaturalist's chair. You can sit in the naturalist's chair. She said the design theory lets, demonstrates that the Christian can sit in the supernaturalist's chair, and she says it lets one in one's professional life see the cosmos through the lens of a comprehensive biblical world view. So that's content of the theory, the content of what design is. But that's different from whether one is a member of a particular church or something. Q. And I understand that Nancy Pearcey is entitled to her opinion as to what the benefits of intelligent design theory are, just as Richard Dawkins is entitled to his opinion concerning the benefits of evolutionary theory. But that's their opinion, correct? A. The difference there is that Nancy Pearcey, as one of the authors of "Pandas," and describing in this case, this is in her later book "Total Truth" where she's saying here's what intelligent design is, it's something that demonstrates the objective truth of Christianity, restores it to genuine knowledge, she's telling us something about the content of intelligent design, as a leader of the movement describing its substance. Q. So but Richard Dawkins is not a leader of the evolutionary movement? A. He's a scientist. It's hard to think of the evolutionary movement as just a bunch of scientists who are investigating the world. Q. Sure. Well, a lot of intelligent design people think that it's hard to think of an intelligent design movement. A. They explicitly talk about their movement. That's actually language they use very often. Q. Are you familiar with evolutionary theory being discussed as a big tent theory? A. As a big ten theory? Q. Yes. A. I have not heard that, although I'm a member of a Big Ten school. I think I ought to know that, I'm sorry. Q. Forgive me if I was unclear. I said big tent theory? A. Oh, big tent. All right, you can see that -- Q. I know you're in the Big Ten. I'm in Michigan, too? A. Football. A big tent theory, yes. Yes, indeed, I do know that. Q. I live in Michigan, so I'm introduced to the Big Ten. Are you familiar with that usage that evolutionary theory is a big tent theory? A. Yes, indeed. That's a very common usage. Q. So it encompasses a range of positions on a variety of issues, including for example common descent. Is that correct, Dr. Pennock? A. That's right, among a variety of positions, yes. Q. You testified that a characteristic of modern science is a commitment to what's called methodological naturalism, is that correct? A. Yes. Q. It's also true though that scientific progress has been made prior to, what shall we say, what we think of as modern science, isn't that correct? A. If you're saying in terms of whether we made scientific discoveries, things that we would regard as empirical discoveries of that nature before the scientific revolution, certainly so, my examples from Hippocrates and others that comes before that period, but we still sort of recognize that as the making use of methodological naturalism. Q. So scientific progress has been made before what we characterize as modern science with its commitment to methodological naturalism, isn't that correct, Dr. Pennock? A. As I tried to say, the term methodological naturalism is one of these philosophical long terms that scientists themselves may never have heard of. So the important thing is whether in their practice, in their method they're actually following it or not, and what I was trying to explain is that this notion that we're identifying now with methodological naturalism in fact can be found in an early form even in the early Greeks. So I wouldn't say that it's sort of before science. In that sense they are sort of performing what we would now think of as science to the extent that they're making use of that method. Q. Let me ask you this. I mean, things such as gravity, that was once thought of as an occult force, correct? A. Exactly. This was something where it was actually sometimes described as spooky action at a distance, and the change that happened there was to reconceptualize it as a natural property, see it as something that was a law of nature in the same way that other laws are, and to treat it as something to be experimented upon, investigated in the normal ways, under the normal constraints of methodological naturalism, and essentially what that does is take it out of the realm of the occult and see it as a natural sort of thing. Q. Right, and that's what Newton did. He I believe the term that you used which is useful is explicate. He explicated. Is that correct. or am I misunderstanding? A. Explication is what philosophers do in trying to take a notion, a concept in its form within a practice and to try to make it systematic and rigorous. So Newton himself would not be doing explication. Newton is doing research as a scientist. Newton is one of those transitional figures where we now of course cite him for the scientific work, but we also leave aside those aspects that were unscientific. Q. And the result of his work was to take a force previously thought to be occult and I believe as you have testified to bring it into the natural world, the natural causal world, is that correct? A. That's to say what he did was treat something under the constraints of methodological naturalism to say we'll view this and see it no longer as supernatural, no longer as breaking the laws of nature, but actually as a law of nature itself. Q. Isn't it true that in his day Newton was thought to have departed from naturalism? A. I'm sorry, can you say that again? Q. Isn't it true in his day Newton was thought to have departed from the law of naturalism? A. As I said, this is something where Newton himself is a transitional figure, and I don't know if something specific in that day where there was a discussion with regard to that. Newton himself was very straightforward that in his rules of reasoning he says we shouldn't introduce superfluous causes. He talks about explaining things in terms of philosophy by which he means natural philosophy or what he calls now science rather than bringing in the divine. So with regard to his scientific work we now take his scientific work, I don't think there's a departure from methodological naturalism. Q. Didn't Leibniz criticize Newton for departing from naturalism? A. Leibniz and Newton were at loggerheads as for a number of reasons. Each thought that they were the origin, the originator of the calculus or fluctions, and so they were not friends with regard to things. Certainly that's right, Leibniz criticized some of Newton's arguments on a number of points. Q. And you're aware of the hypothesis that intelligence is an emergent property of matter, correct? A. That would be viewing intelligence in the ordinary science, scientific sense, under the constraints of methodological naturalism and treating it like any other property. Q. So you regard that as a natural claim? A. If viewed in that way, then that would be an example of design understood, as I was trying to give examples of the way archaeologists use it, it's treating it in the ordinary sense the natural sense of design. Someone, some person like us did something. Q. Isn't it true that as we sit here today scientists are investigating what some people call psychic powers? A. I know that there are a few scientists who did that I believe. Mack is one name, someone who's done this. So there are a few scientists who have done that, that's right, and what they do in that case is really the same thing. It's often misunderstood to think, to call something paranormal means that it is supernatural. Essentially what's going on in those scientific investigations is to say no, that's not so. We will again treat this purported phenomenon, ESP or telekinesis for example, as though this is a natural, still yet unknown, but ordinary causal process, treating it essentially in the same way we treat other things under the constraints of methodological naturalism, reconceptualizing it as a natural thing rather than a supernatural. Q. And that's more or less what Newton did, right? He took something that was occult or not normal and he studied it and brought it from the supernatural or paranormal to the natural world by virtue of his theory, correct? A. It's a little misleading to say he took it from supernatural and brought it in. I mean, essentially what is going on is reconceiving something that we thought was supernatural we now realize isn't. That's different from making a claim this is the supernatural. That's departing, that would be to depart from methodological naturalism. Q. Let me ask you this. There are scientists investigating as you said telekinetic powers. Those scientists perform experiments, don't they? A. I know of some experiments related to attempts to study this. It's always a question as to whether in fact it's a real phenomenon, but there are some attempts to do that, and again it's done by treating it as though it is a natural phenomenon. Q. And that's what Newton did with gravity, correct? A. That's right. Newton essentially says gravity is a natural property. Q. So gravity was thought to be an occult force, and Newton said, "I think it's natural," correct? A. That would be one way of putting it, yes. Q. Are you familiar with the philosopher Jerry Fodor, and forgive me if I mispronounced his name, F-O-D-O-R? A. Yes. Q. Are you familiar with the philosopher Saul Kripke? A. Saul Kripke? Yes. Q. Isn't it true that Fodor argues that mind cannot be explained in terms of evolutionary naturalism? A. I don't know Fodor's work specifically with regard to that point. If you could say a little bit something where he's coming from on that. Q. No, if you don't know that's fine. How about Saul Kripke, isn't it true that Saul Kripke argues that mind cannot be explained by evolutionary naturalism? Are you familiar with his work? A. Again I don't know any specific thing where he's claiming that this is something that departs from science. Q. Isn't it true that Fodor argues that scientists have failed to establish clear physical criteria for saying that someone is in a particular mental state? A. That's a claim that I do know that Fodor has made. It has to do with establishing the direct connections between these. It's not something that departs from the rules of science. It simply says here's an unanswered question, we don't yet have an answer from that. Q. And isn't it true that Kripke likewise argues that scientists have failed to establish clear physical criteria for identifying a particular mental state? A. Yes. Kripke is writing quite a few decades back, and again the same point is true, science is quite clear we have not yet been able to do this. There are lots of those open questions where we don't have an answer to it, but that's something I would agree with as well. We don't yet have an answer to that. Q. You're familiar with the work of Gregor Mendel? A. Yes. Q. And what is his status in the history of science? A. Mendel is important as we think of as the founder of genetics. It was Mendel who was the investigator of factors that determine traits. He was working with peas, beans, and postulated factors which would produce the patterns that were seen in differential colors for example in peas or short and long stem lengths. So Mendel 's laws we speak of have to do with basic features of the genetic mechanism. Q. And isn't it true that Mendel's paper on genetic theory was rejected for publication by the German botanist Karl Von Nageli , if that's the proper pronouncing, which I doubt. It's spelled N-A-G-E-L-I. Isn't that true? A. I don't know about that. It was eventually published in a regular scientific journal. Q. And Mendel's theory was lost for forty years between the time he submitted it for publication initially and the time it was, his work was rediscovered, correct? A. Right. This was one of the examples where science re-finds something that had been known before those genetic laws were rediscovered independently three times by scientists essentially at the same time who then all looked back into the literature and found Mendel's work and gave him credit for that. Q. Now, Von Nageli, the man who rejected Mendel's article for publication, did so because Mendel was an anti-evolutionist, correct? A. I'd be surprised if an editor would tell somebody that it's rejected because they're an evolutionist in particular because at that point this is the same time that Darwin's work is getting underway. So those things had not yet even come together. I don't know the details of this. If there's a letter to that effect I'd be interesting in seeing it. Q. Von Nageli regarded Mendel as a creationist, didn't he? A. I'm not aware of that. Q. Okay. You said that Mendel, we regard him as the father of modern genetics. A. We think of him as the pioneer of this, that's right. Q. And modern genetics is one of mainstays of the so-called neo-Darwinian synthesis, correct? A. Part of what Mendel's work did was show how it is that the genetic mechanism works in early form. Obviously we've learned much more since then, so we don't talk about Mendel's theory when we're talking about genetics except as sort of a tip of the hat to a progenitor. And so yes, we think of Mendel as the founder of that. Q. Dr. Pennock, isn't it true that there's not agreement among philosophers of science concerning the validity of methodological naturalism? A. The term methodological naturalism is fairly straightforward in the literature. There have been criticisms of it from people like Del Ratzsch from discussions specifically of this debate. So there's some who have taken up a sympathetic position to the intelligent design folks and tried to argue that we could dispense with this. Q. Dell Ratzsch is a philosopher of science, correct? A. He's a philosopher of science at Calvin College. Q. And one of the exhibits today featured a disagreement between Dell Ratzsch and Phil Johnson, correct? A. That was the review that I quoted where Johnson is reviewing Ratzsch's book. Q. That's correct. A. I don't think of it as a dispute. He's actually dispositive with regard to, pretty much with regard to the article, with regard to the book. Q. Is it your opinion that Dell Ratzsch is an intelligent design creationist? A. Ratzsch himself, I don't know his position on this. I haven't talked with him in regard to that. Q. Isn't it true that initially some scientists resisted the Big Bang because of its consistency with Christian religious beliefs? A. Some people rejected it because of its connection to Christian religious beliefs? I know that there were those such as Eddington, who was one of the early scientists to look at this and investigate it scientifically, that he had troubles with it philosophically. It's hard to say that he did because he was, I'm not sure how you put it, because of its agreement with Christian beliefs. Q. Consistency. A. Consistency? That would be strange to say that because Eddington himself was a Christian, was a Quaker, so I don't see that as something that would have been the basis of this. Q. So it's your testimony here today that the Big Bang theory did not encounter resistance from persons who opposed it because of its consistency with Christian beliefs? A. No. There may very well be some who rejected it on that grounds. Q. In fact, initially that theory was received very skeptically by some for that reason, correct? A. I would not be surprised to find people who gave that as a reason for their own initial skepticism. And there's also of course scientific objections to it at the time. Q. The Big Bang theory is currently the dominant theory in that area, correct? A. Yes, that's right. Q. So those scientific objections were overcome, correct? A. That's correct. Q. In fact, Einstein tinkered with his equations to avoid tailoring his equations and his theory to the reality of an expanding universe, correct? A. When you say tinkered with, what he was doing was taking into account what was known and trying to work into his general theory. He was attempting to come up with a very general view, a constant, a cosmological constant to make the equations work, make them fit with the evidence. Q. It's evident today that you published two books that have to do what you call intelligent design creationism. I trust you have no objection to your books being in the library of Dover High School? A. I actually had someone call me and offer to donate sixty copies to the library, and my reply was I'd be happy for him to do that, but I thought that he should really include sixty different books, which would be easy to come by, and happy that mine would be amongst them. I should have just taken him up on the offer though. Q. You're familiar with the French chemist Lavoisier? Did I say that correctly? A. Lavoisier, yes. I can't say that in French either. Q. I'll spell that for you after the session. Isn't it true that he called for a scientific revolution in the area of his inquiry, self consciously called for a scientific revolution? A. With regard to chemistry, that's right. Q. By that he meant a reinterpretation of knowledge in that area as it had been known to that time, correct? A. This is something within the discipline of chemistry that would have been regarded as a significant change in basic assumptions. So that's right, it's not something that was a challenge to science itself. It was a challenge to some specific chemical presuppositions. Q. When you say challenge to science itself, you mean science as characterized by a commitment to methodologi cal naturalism? A. That's right. There's nothing in Lavoisier's revolution, the chemical revolution, that was at all a challenge to the basic methods of science. Q. And you're familiar with what is termed the Copernican Revolution? A. Yes. Q. And that consisted in a radical re-thinking of theory of universe, shifting it from a geocentric theory to a heliocentric theory, correct? A. That's right. Historians now more credit Kepler with that and talk we should say, we should really say it's a Keplerian revolution because it was Kepler who was more detailed in being able to establish the laws, orbital laws and so on and how those work, but yes, we do credit Copernicus as well with shifting our perspective with regard to is center. Again neither of those is a change in the methods of science itself. It's accepting those and giving a different physical account of the world. Q. And again when you say that, you mean it doesn't pose a challenge to the convention of methodological naturalism, correct? A. That's right. Q. Your claim concerning these views that intelligent design focuses on natural selection is based on, and that's not an accurate characterization of the intelligent design position, is based on your opinion concerning who belongs in the intelligent design camp, correct? A. What I have done throughout my research is to read the full range of proponents, focusing most upon the key leaders of the movement, but also more broadly and understand them in their own terms, the way in which the literature, the intelligent design literature is presented. Q. And I do understand that you have conducted research, but that research provides the basis for the opinion you have offered here today, correct? A. That's right. Q. Do you know whether Dr. Behe accepts common descent? A. Behe has said a number of things with regard to common descent. In his book, in fact he's usually described as someone who accepts it, but when you look specifically at what he said, he's always very careful in his wording and says thing like "I have no particular reason to doubt it," something of that sort, leaving himself a little bit of wiggle room with regard to whether he actually accepts it or not or is just agnostic with regard to it. Q. Is it your opinion that Dr. Behe rejects common descent? A. I would like to know his specific direct view on that. I have asked him and Dembski sometimes direct questions and have been unable to get direct answers with regard to those. Q. So you don't know whether Dr. Behe rejects common descent? A. I know what he has said, and he has said, "I have no particular reason to reject it." Q. I want to ask you a few questions about your work in the computer science area and Evita. You testified that in your opinion that Evita is an artificial life system designed to test evolutionary hypotheses, correct? A. That's correct. Q. And that's the scope of your testimony here today. You said the same thing, correct? A. That's correct. Q. And you said today and I believe in your opinion that it's designed to instantiate Darwin's law, correct? A. That's correct. By instantiate, just so that I this kind of explain this sort of philosophical term, the difference here is between a simulation of something and an actual instance of it. That's to say a realization of it. In the Evita system we're not simulating evolution. Evolution is actually happening. It's the very mechanisms of evolution itself as Darwin discovered them. The organisms actually do self replicate. They do randomly vary the code changes. The mutations happen at random. There is competition and actual natural selection. So these are not being simulated. Those processes are actually happening. So that's the sense in which it's an instance of evolution, not just a simulation. Q. And to make sure I understand, it seems you're saying that the instantiation makes it a more perfect model of Darwinian law of natural selection, is that correct? A. What I'm saying is it's an actual example of it, that what we have in the system our organisms, Evitians, have the very properties that the Darwinian mechanism discusses. So it's not a simulation of replication. They are actually self replicating. It's not a simulation of a random mutation. That's what's going on with the code. It's not a simulation of natural selection. They do compete and are naturally selected, without intervention, without design. Q. And Mr. Rothschild asked you and I believe you testified that the program doesn't address the question of origins, but rather the process of Darwin's law, it's working out in the computer program organisms, correct? A. It doesn't deal with the origins of life. It deals with the evolution of complexity of adaptations. So origins can sometimes be used in both ways. So what's relevant here is it's not about the origin of life. It's about the origin of complex traits. Q. And I believe you said that the overall purpose of the project is to test how evolution actually works, is that correct? A. That's right. What we're able to do in the system is put forward an evolutionary hypothesis and then set up a controlled experiment and let the system evolve with replications, as many are as needed, and in some cases you might have fifty different populations replicating in a controlled situation, fifty in an experimental situation, so that you can then watch what happens in each case and observe evolution, the Darwinian process, do its stuff. Q. Now, if someone looked at a computer program, I think you have said that it was written by a particular individual called the, what did you call it, the genesis program or the -- A. No, the Ancestor. Q. Ancestor program, forgive me. They would look at that and immediately know that was done by a computer programmer, correct? A. Not necessarily at all. In fact, one can look at these things and not know which things were coded by a programmer and which things were evolved. We know because we put them in there this was the one that we coded, but if one were to just look at them, you wouldn't necessarily be able to tell at all. Q. So is it your testimony that if someone happened to cross that computer program, they wouldn't know that someone had designed it? A. That's right. You would not be able to pick out the ones that were evolved from those that Charles Ofria hand coded as the Ancestor. As I said, what the Ancestor does is simply replicate it. It's a very basic program. Most of it is just blank code, and as the organisms evolve it can actually turn out that they lose the ability to replicate. Some mutations are harmful. Many are. Most are, or neutral. It might make no difference. Some mutations can actually make them better replicators, and if it turns out that random mutations replicates better than another organism, that means that in the competition, in the digital environment, those will be naturally selected. So what you'll have over time is the evolution of for example faster replicators. That is they figure out a way to replicate faster than the original programmer programmed in. Or it could turn out that they'll be worse, and those will then lose out in the competition. So what you see is the evolutionary process, random mutations to the code, being naturally selected for and generation after generation organisms evolving, in this case better replication ability. Or, and this is the other thing that's characteristic about Evita, it can evolve the ability to perform complex logical operations, and in this case again it's not something that was programmed in at all. The original Ancestor could do none of that, but what one sees at the end are organisms that have evolved these complex abilities. The code has changed. It's acquired an ability that it did not have before. And that's what we're able to see, something we know that was designed at the beginning but couldn't do any of this stuff to something at the end that has evolved so it's quite complex. The set of instructions has to be executed in a specific order to produce a particular function. That's something we can look at and say how did it do it, and often they're very clever, they evolve things where the programmer would think why, I would never have thought even to do it that way. And that's what allows this to be a nice model for examining how evolution can produce complex functional adaptations. Q. Sure. A. If you have it, and the other thing about it is -- sorry, I get excited about this. We can trace, we can keep track of the full evolutionary history. So we have a complete fossil record if you will. So after we've see that it's evolved something we can look back and look, it's a mutation by random mutation of how that evolved. Q. Sure, and forgive me if my question was imprecise. I didn't want to cut you off, but my question is a little different than one you've answered at least as I see it, not technical, which is this. I'm not asking about the difference between the organisms you're looking at. I'm saying if someone came across that computer program, the Ancestor program, wouldn't they believe it was designed? A. And my answer is that you really can't say that. You might believe it and you'd be wrong. You can't tell the difference between the one that was encoded and one that was evolved later on. Q. So it's your testimony that someone could believe the computer program was not designed? A. You're asking a psychological question about what someone could believe, is that right? In that case they could believe all sorts of things, but the question has to do with can you look at them and tell this was one that was designed, and the answer there is no, not necessarily. Q. Let's use your definition and let's constrict causality to the natural world and I'll ask you the question again. If someone like myself wandered down to Michigan State University and came across your computer system generating this pattern that you have described in great detail which is designed to substantiate Darwinian mechanism, is it your testimony or do you have an opinion concerning whether someone like me would think that was designed or not? A. Someone might think it was. You might look at it and you might say wow, that looks pretty complicated, how could that have happened. You might think this is so amazingly functional and interrelated, it's irreducibly complex, it had to have been designed by someone, and you'd be wrong. Q. So I would be wrong if I inferred that that computer program has been designed by a computer programmer? A. That's right. You'd be wrong about that. The ones that emerged at the end of the evolutionary process have specific code that lets them do specific adaptive functions, and that was not programmed in. Q. Would I be wrong if I inferred that the computer program had been created by a supernatural force? A. If you were to conclude this just as a theological position or as a scientific position? Q. If I were to conclude it in any way. A. So again, and this is a nice example to sort of show the difference between thinking about this as a scientist under methodological naturalism versus the intelligent design notion of opening our minds to the possibility, what I have said here is that the organisms at the end weren't designed. We didn't have a hand in doing that. They evolved. Someone who says well, we have to consider the possibility of supernatural interventions might say well, you know, God was in there or some supernatural designer was in there changing the bits inside the computer. Well, you know, we don't know if that's true, and no scientist can ever know if that's true. That's not a testable proposition. So in that sense we can never rule that out. That's part of what it means to be a methodological naturalist. So we're neutral with regard to that. Our conclusion that there was no design is one based upon methodological naturalism, namely we're assuming that this is working through ordinary laws, that there aren't any interventions that breaking laws. We know that we didn't do it, and that's what we can say as scientists. If God or some supernatural being is in there fiddling with the gates, the logic gates such that there really was design, we don't have any way of testing that. Q. Dr. Pennock, you testified that if someone were to reject, if the intelligent design theorists or intelligent design creationists as you call them were to succeed, modern science would be knocked backward. Is that your testimony today? A. That's right. It would be a return to this earlier pre-scientific notion. Q. Are you familiar with the work of Dr. Scott Mennick? A. I am familiar with him. I have met him and talked with him. Q. Do you know whether he's engaged in scientific research? A. I believe he is. Q. Do you know whether he is a proponent of intelligent design? A. He is. Q. I believe that you have testified today that in your opinion as an expert, intelligent design is creationism. A. That's correct. Q. And that's based on your research and your, the application of your training to the database that you have used for that research, is that correct? A. That's right. Q. And your expert credentials are those that were listed on your CV, is that correct? A. Yes. Q. You testified about young earth creationists. Is it your opinion that that's not science? A. That's correct. Q. Are you familiar with the work of Larry Laudan, L-A-U-D-A-N? A. Yes, Larry Laudan was a philosopher of science who actually has been a previous professor at the university where I did my work. Q. And Larry Laudan said he believes that creationism is science, it's just bad science, correct? A. You're referring to a particular article that Laudan wrote that Michael Ruse included in his anthology on creation science movement in the early 80's, and in that case Laudan is making arguments that creation science should be allowed to be science in that he says it's offering a claim that could be proved, but that is found to be false such as the age of the earth, because we know that that's not true. So in that sense he says this is something that is bad science. If one were to put that forward as though it were science, that would be wrong, it's bad science. But he said we can allow that as science. Now, he does that under the assumption that we're judging this under the kinds of rules that I'm mentioning, to say that we're judging that the young earth hypothesis, let's say that the earth is ten thousand years old is false, and that we have disconfirmed that. That disconfirmation is done by assuming that we can judge it under the rule of methodological naturalism. That's to say that we're taking our ordinary notion and not allowing supernatural intervention. If we were to allow it, then we would not be able to say that this is something that has been disconfirmed. That's to say if you take seriously the content that departs from scientific method and at that part, point, you'd be wrong to say that it's just bad science. At that point you'd just say it's not science. So this is always the sort of a subtle point that's important to try to get across, and let me try to put it this way, right? It's often complained by creationists that they say oh, you know, you're saying that we can't be falsified, and yet at the same time you're saying that we are falsified. Gosh, isn't that a contradiction? And that's just a misunderstanding, right? The claim that it can't be falsified is the claim that it can't be falsified if one is departing from methodological naturalism. That is to say if you treat this as just an ordinary scientific hypothesis, then you'd say well, we projected that the earth is ten thousand years old. But if you depart from it and take seriously the supernatural content, then you can't say that anymore, because at that point who knows? Young earth creationists, some of them have said well, the world looks old, but it looks old because God made it old, that really it is six thousand years old but he made it so that it appears to be much longer, did much, much earlier. Well, that's sort of a deceptive view about the way things were created. But if you take that view that it's possible to say that the supernatural being is deceiving us in this way, then there's no way to say that we've disconfirmed that. For all we know the world may have been created five minutes ago and we've just been implanted with memories to make us think it that it's much longer, right? There's no way to disprove that. If you seriously take the supernatural possibility, then you can't disconfirm it. So that's the sense in which it's important to say under the assumption of methodological naturalism, we have disconfirmed it, it's bad science, that's what Laudan is talking about, but if you were to take seriously the non-natural part, that's to say rejecting scientific method, then it's just not science, and we can't say that we have rejected it. So there's always these two different hypotheses. You've got to keep them distinct. There's no contradiction. MR. GILLEN: Thank you, Your Honor. I have no further questions. THE COURT: Thank you, Mr. Gillen. Redirect by Mr. Rothschild? MR. ROTHSCHILD: Just a few questions, Your Honor. REDIRECT MR. ROTHSCHILD: Q. Hello again, Dr. Pennock. Early in your cross examination Mr. Gillen brought up the subject of Newton and suggested that there have been supernatural explanations for action at a distance, I think you called it spooky action at a distance, but that Newton took that supernatural proposition and came up with a natural explanation, is that correct? A. That's right. Essentially it's a reconceptualization of what was taken to be supernatural and saying oh, no, it's not really supernatural, we're not even going to think of it in that way, we'll think of it under the constraints of methodological naturalism and treat it as a natural hypothesis and then treat it as such. Q. And your example of epilepsy with Hippocrates, a similar phenomenon, we had a supernatural or spiritual explanation and Hippocrates said no we can come up with a natural explanation? A. Exactly. And again one remains neutral metaphysically about whether or not there is some divine basis for this. That's just something that's outside of science. It's what one is doing within science as saying this is just a natural explanation, that's what weÕre getting. Q. Is intelligent design making the same kind of transition? A. Explicitly not. Their basic goal and proposition is to change the ground rules. They want the supernatural to be introduced as you know Nancy Pearcey has said, this lets us as professionals, intelligent design demonstrates that Christians as professionals can sit in the supernaturalist's chair. She's not saying that we can say what we thought was supernatural is natural. No, this is meant to be substantive, it's meant to be a rejection of the basis of science. Q. Dr. Pennock, isn't intelligent design in fact doing the exact opposite as Newton, taking a natural phenomenon for which we have natural explanation and arguing that we have to replace it with a supernatural explanation? A. Exactly, in the sense that the kinds of examples that they give of design inferences, every single one of them is a natural notion of design. No one has any objection to those, but those are done under ordinary constraints within science, and we can give evidence and test those, which we do all the time. They're wanting to reject that notion such that even ordinary cases wind up being quite extraordinary. Q. And in the case of the theory of evolution we have a natural explanation? A. We can see it happen. Q. And they want to displace it with a supernatural explanation? A. Exactly. MR. ROTHSCHILD: I have no further questions, Your Honor. THE COURT: Recross. RECROSS BY MR. GILLEN: Q. Dr. Pennock, it's your opinion that we have a natural explanation for the origin of life? A. I haven't said something about the origin of life. I think science does not yet have an explanation of the origin of life. It's a topic of research. People are working on it. One of my colleagues at Lyman Briggs is part of a project that is actually looking at a new method for how one can have an explanation of that. We'll see whether that pans out or not. So there's real research going on, but that's not part of the Darwinian theory. Darwin has set aside that question. The question is the origin of species, the origin of adaptations, of complexity and so on, and that's where we can say we have an explanation. Q. Do you have an understanding concerning whether intelligent design theory as I call it, intelligent design creationism, is usually what speaks to the origin of life? A. In some of their literature they have used origin of life explicitly as an example of something that cannot be explained naturally. Stephen Meyer for example often uses that in his talks. Others have as well. Sometimes though the focus is on things other than the origin of life. Q. And there are philosophers of science who believe that mind cannot be understood in terms of evolutionary naturalism, correct? A. The question is whether science has been able to explain this in natural terms. Q. No, the question is whether there are philosophers of science who believe that mind cannot be explained in terms of evolutionary naturalism. A. If we're talking about philosophers, then that's certainly true. There are some philosophers who will consider the matrix hypothesis as well that life was created five minutes ago. So yes, indeed, we have lots of discussions about that within philosophy. MR. GILLEN: No further questions, Your Honor. THE COURT: All right. You may step down, Dr. Pennock, thank you. Our exhibits then for Dr. Pennock are as follows. We have P-319, which is the CV for Dr. Pennock. Any objection? MR. GILLEN: No objection. THE COURT: That's admitted. 339 is the "Tower of Babel" book as indicated by, or as discussed by Dr. Pennock during his testimony. Are you seeking to introduce the entire book? MR. ROTHSCHILD: We are, Your Honor. THE COURT: Objection? MR. GILLEN: No objection. THE COURT: That's admitted. P-627 is the book "Intelligent Design Creationism," I'm abbreviating that title I believe. But are you seeking to admit the entire volume or not? MR. ROTHSCHILD: We're not going to move that into evidence. THE COURT: All right, that's not admitted. The nature article is P-330. What's your pleasure with that, Mr. Rothschild? MR. ROTHSCHILD: We'd like to move that into evidence. MR. GILLEN: No objection, Your Honor. THE COURT: That is admitted. 343 is the book "The Design Revolution." MR. ROTHSCHILD: We'd like to move that into evidence. THE COURT: Any objection? MR. GILLEN: We have no objection. THE COURT: That is admitted then, P-343. P-341, another book, "Intelligent Design," you're pleasure on that? MR. ROTHSCHILD: We'd like to move that into evidence, Your Honor. MR. GILLEN: No objection, Your Honor. THE COURT: That's admitted. The Dembski article is P-359. MR. ROTHSCHILD: We'd like to move that into evidence, Your Honor. MR. GILLEN: No objection, Your Honor. THE COURT: That's admitted. The expert report is P-602. MR. ROTHSCHILD: We are not moving that into evidence. THE COURT: I assume that, that's not admitted. Separate article, separate Dembski article is P-323. MR. ROTHSCHILD: We're moving that into evidence, Your Honor. MR. GILLEN: We have no objection. THE COURT: That's admitted. P-338 is the Christianity Today article. MR. ROTHSCHILD: We are moving that into evidence, Your Honor. MR. GILLEN: No objection. THE COURT: That's admitted. The Meyer article is P-332. MR. ROTHSCHILD: We are moving that into evidence. MR. GILLEN: No objection. THE COURT: All right, that's admitted. And the Ratzsch article is P-328. MR. ROTHSCHILD: We are moving that into evidence. MR. GILLEN: And I have no objection. THE COURT: And that's admitted. I have no exhibits, no new exhibits by Mr. Gillen during his cross. Is that correct, Mr. Gillen? MR. GILLEN: That's correct, Your Honor. THE COURT: Any other exhibits that I have missed? MR. ROTHSCHILD: No, Your Honor. THE COURT: All right. Let me have counsel approach, please? (Side bar at 11:48 a.m.) THE COURT: It's ten of 12:00, and what have you heard from Mr. Benn? MR. WALCZAK: He will be here at 1:15. The reporters will be here with them, and I advised him that Your Honor would give him an opportunity to make whatever arguments he wants to make at that time, and at that time we'd go from there. THE COURT: Well, my intention would be to meet in chambers with all counsel, not the reporters, and then have a discussion and see precisely where we are. I think there's it's appropriate for you not to try to paraphrase what Mr. Benn's exact position is. MR. WALCZAK: I have a hard enough time making my own arguments. THE COURT: But given that, I guess the question is should we start with another witness now or should adjourn and come back at 1:15? MR. HARVEY: I think we should adjourn. The next witness is going to be Steve Stough. He's going to be I would say approximately 45 minutes to an hour maybe. THE COURT: So it seems to make little sense to -- are you all right with that? MR. GILLEN: Yes, certainly. THE COURT: All right. Why don't we do that then. Let's break and we'll come back roughly, why don't you assemble in chambers. IÕll let you all find Mr. Benn when he gets here and yank him into chambers and we'll have that discussion, and then my intention is if in fact the answer is in the negative, I guess we're going to have to have a proceeding in open court with respect to the reporters to see where that goes at this point. You do not know whether it's his intention at this point, you don't know the reporters' intentions with respect to whether they would indicated that they'd testify? That seems rather counterintuitive. MR. WALCZAK: My best information is that he will not. THE COURT: That would make sense. That would be more consistent than if they would show up and they say won't testify, and I frankly will have to ask for an understanding -- MR. WALCZAK: I think they will say their names and then they will refuse to answer questions in both their alleged First Amendment -- THE COURT: No rank, no serial number? MR. HARVEY: Your Honor, I want to give you a heads up on something else that's coming up this afternoon. Probably not at momentous as this. This afternoon we're going to call Steve Stough, who read a number of the -- he only knows what he read in the paper, and so we're going to do again what we did yesterday, which is attempt to introduce the article. THE COURT: You mean he really only knows what he read in the paper? MR. WALCZAK: He didn't attend -- MR. HARVEY: He didn't attend the meetings. So and then in addition we're going to -- THE COURT: What's the purpose of Mr. Stough? MR. HARVEY: The purpose of Mr. Stough is to testify about the harm to him, his perception of the Dover school district's public statement that was published, but also to testify about what he learned through the paper at the time, because we think it's relevant to the effect on the community and the endorsement test. THE COURT: Well, they have an objection, and I haven't ruled on whether or not the contents of the papers are admissible for the purpose of the effect portion, and you're forewarned that I might not allow that. You know, that compels me to decide that objection, and if I have to do it this afternoon I may not allow it as it goes to -- MR. WALCZAK: Even for a non-hearsay purpose, this is clearly for -- MR. GILLEN: It's not clearly for any such purpose, Your Honor. THE COURT: Well, I think it's an attempt to introduce it for that purpose. MR. GILLEN: Yes. THE COURT: Your argument is that it's not clearly for that purpose, and I understand that argument. I think this is a complicated question and, you know, we'll rule as we must if you bring him in at that point. I think it's difficult, you know, I've made the popular analogy to unringing the bell, I think in a bench trial intellectually I can separate out one from the other, but I'm not so sure I should, and I think that's entirely problematic Now, you know, if I would not allow that testimony for example, and if for example the determination that I have made with respect to reporters is appealed to the Third Circuit and if the Third Circuit believes that I'm correct, and if the reporters are compelled to testify, and if you get the newspaper articles in through that mechanism, then that I guess would allow you conceivably if I sustain an objection this afternoon to bring this witness back in a rebuttal phase, and I wouldn't prevent you from doing that, but at this stage I have to tell you I don't think it's clear as you believe it to be that I should simply let the newspaper article in on the effect. And I have to tell you, too, that given the state of jurisprudence on these issues, which is somewhat dicey, and all of you would admit that probably in moments of candor, that to simply state that you introduce it on the effect part of it and it doesn't go to truth I think is problematic, because I think it does wash over the truth, and I think courts are unclear on that point, and I might say that also to further buttress the difficulty you have. MR. HARVEY: Let me, Judge, just have a couple of other things I think you need to know. One is is that I anticipated that if when I did this with the articles today that you might take it under advisement until later if the reporter issue hadn't been considered, just as we did yesterday, and I was putting a heads up, just I didn't want you to think I was butting heads with you. THE COURT: No, and to be fair I understand that and I respect that. But you understand it wouldn't be so much that I take it under advisement. It might be that I would sustain the objection, and then you're left with the scenario that I outlined. MR. HARVEY: I understand. I understand. THE COURT: So you call it -- MR. HARVEY: Here's a related problem. We intend through Mr. Stough to also seek to lay a foundation for the admissibility of letters to the editor and editorials that were in the Dover papers during the relevant time frame that relate to this issue and as they are related to the endorsement and the endorsement issue. THE COURT: Why can't you recall him for that purpose? When we see what happens with the reporters why can't you do that? MR. ROTHSCHILD: The reporters obviously are not the author of these letters anyway, so that isn't going to change with the resolution of the reporters. MR. WALCZAK: This is a completely non- hearsay issue that all of these articles are self-authenticating is a 9026 -- MR. HARVEY: Letters and editorials. THE COURT: Well -- MR. WALCZAK: Even those that are coming in not for the truth of what is said, simply is the fact that this is what's out there. THE COURT: Well, I understand that, Mr. Walczak. But as I just said, I'm not so sure that when you consider the effect problem it doesn't wash over into the truth. I don't think it's as pure as you cast it to be. Now, we're talking about different things. If we're talking about the articles that contain statements, quotations from individuals school board members, I think that's entirely problematic, and I don't necessarily buy into your argument that it self-authenticates for the purpose of the effect on that. If we're talking about letters to the editor, I think that's something different. If we're talking -- it may be something different. If we're talking about editorials that don't contain quotes, that may be something different. MR. GILLEN: I can argue it's not, because the effect, if that effect is going to be charged to the defendants, you have to conclude that that's true. THE COURT: No, I don't know that you do. I think an editorial is something different and a letter is something different than an article that contains a quote, particularly a quote from a school board member on an issue in the case is what was said during the ramp up to the enactment of the policy. MR. GILLEN: I understand what you're saying, Judge, but from our standpoint Steve Stough, he's going to testify about what he thought when he read a letter to the editor. That's evidence of the effect of a letter to the editor. But just as you said, in order to get that effect and charge it to the defendants, you have to conclude that that letter to the editor is true. Otherwise -- THE COURT: I don't think you do. No, I disagree with that, and I'll hear you further on that. I'm not preventing, my purpose is not to get off the exit ramp here and do an argument that we don't need to get into. MR. GILLEN: Right. THE COURT: I understand your argument. I'm not sure that I yet understand your argument, and we'll pursue that further, except that I will tell you preliminarily I might view the letters and editorial as different from the news articles for the reasons I stated. I think you see where I'm going. You really need to be prepared to address that as we reconvene this afternoon with that particular witness. But, you know, to revisit and put a final point, or a finer point on it as it relates to the articles themselves, I would likely sustain an objection as it relates to the articles even on the effect, that's what we're having the reporters come in for this afternoon. We're going to have to see how that plays out. MR. HARVEY: I understand, Your Honor. THE COURT: I think the residual, I said this yesterday, I believe this today, the residual exception under 807 entails fairness to them, you know, if they have the opportunity to have it at these reporters, and if you're going to introduce them -- MR. HARVEY: Your Honor, we may do this to preserve our record today, or we may decide to call them another day after some of these issues have been cleared up a little bit. Let me talk to my counsel about that. THE COURT: But what we have to determine this afternoon as it relates to Mr. Benn if he comes in here is are these reporters in the dock on somebody's request that they be held in contempt. Now, in the first instance it would be you, but I intend to have a colloquy with the reporters if necessary and ask them if they're prepared to testify, and that assumes that you're going to call them to testify. I don't know what you want to do with that. It seems to me that you ought to do that. I can't run your case for you, but to -- MR. GILLEN: To get all wrapped up -- THE COURT: -- put the onus on the defendants only and then you say well, we don't know what we're going to do and they escape the blade from your standpoint, plus if it goes up to the Third Circuit, and I don't know that there's a distinction, but if it goes up to the Third Circuit in depositions only and doesn't go up to the Third Circuit on the testimony of their case in chief, I think that's a very incomplete issue for the Third Circuit to rule on. I might consider wrapping it up and putting a ribbon on it and sending it out and we'll see what the Third Circuit says at that point. Of course you could otherwise turn, I noted that this morning the lazy lawyers, I don't know if that was directed at the plaintiffs or the defendants in the York Daily Record, would not establish in your case, I would not use that for any of you. Did you see that? The York Daily Record put out a statement indicating that there were lazy lawyers in this case because you were attempting to subpoena the reporters. MR. WALCZAK: I thought I was nice to her yesterday when I saw that. THE COURT: All right. Then we'll recess until 1:15 if that works for everybody, and we'll meet in chambers at that time and then I'll rely on you all to get Mr. Benn in. All right? (Side bar concluded at 12:00 p.m.) THE COURT: All right. The conversation at side bar I'll note for the members of the public and the press and the parties had to do with scheduling, and we have this procedure that we have agreed on, that we're going to recess at this point for lunch. As has been noted we have an issue that relates to the testimony of two witnesses on behalf of the, called by the plaintiffs. The testimony would be on behalf of the plaintiffs. We must resolve that preliminarily this afternoon. I will meet with counsel in chambers at 1:15 this afternoon in furtherance of at least attempting to resolve that issue. We'll not spend an extended period of time doing that, but it could take a while. I would say that we will go, we will come back into session likely at approximately 1:45 this afternoon. But that's an estimate. I would say anywhere after 1:30 likely we would reconvene for the afternoon session, and we will resolve at least temporarily if not permanently the issue of the two witnesses, and then we will proceed with the balance of the, not the balance of but the next witness on behalf of the plaintiffs this afternoon after that matter is dealt with. Anything else from counsel before we break? MR. ROTHSCHILD: No, Your Honor. MR. GILLEN: No, Your Honor. THE COURT: All right. We'll see you all in chambers, we'll see counsel in chambers at 1:15, and we'll be in recess until then. (End of Volume 1 at 12:02 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 3 (September 28), PM Session, Part 1 (The following discussion occurred in chambers:) THE COURT: 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." MR. BENN: 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. THE COURT: 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? MR. BENN: No, everything that you said is correct, Your Honor. THE COURT: 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? MR. BENN: Yes. THE COURT: All right. MR. BENN: But that's the reason why I had asked if we could have this conference. THE COURT: The floor is yours. MR. BENN: 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 89 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 15 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. THE COURT: That's not my intention. MR. BENN: No, no, but I -- THE COURT: 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. MR. BENN: That's fine. THE COURT: I interrupted you, but I think it was necessary to do that. MR. BENN: 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. THE COURT: I think we're beyond that. MR. BENN: 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 -- THE COURT: I'm not going to allow that question. MR. BENN: 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. THE COURT: 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. MR. BENN: You got it. THE COURT: Depending on the time of day and the personality of the judge. MR. BENN: Especially after your last opinion on my case, I don't want to call you at all. THE COURT: 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 -- MR. BENN: I go beyond that. I'm willing to have them testify as to what they wrote in the article and basically forget the affidavit. THE COURT: That's fine. MR. BENN: That means everything that's set forth in that article. THE COURT: Well, then I think we've clarified that point. Then I think you should reschedule the depositions and try to do that. MR. BENN: Well, if I can interject -- I mean, this is kind of like my last hurrah. THE COURT: We could only hope not. MR. BENN: 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. THE COURT: I'll produce that order, if necessary. MR. BENN: 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. THE COURT: Depending how long this trial goes, you might be my guest in terms of doing my job. MR. BENN: 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. THE COURT: Are you suggesting that this language should apply to both the depositions and the trial testimony? MR. BENN: 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. THE COURT: Well, the problem Friday, I assume you fellows are getting out of here on Friday, but I'm not sure of that. MR. BENN: Or we could do it Monday. I mean, whatever works. THE COURT: Well, we do have Friday morning off. MR. GILLEN: Right. THE COURT: Although you may have something scheduled in terms of pretrial planning. I'm not sure. Do you know? MR. MUISE: I have a plane flight. MR. WHITE: I was not going to be here. THE COURT: Do we need the whole team? MR. WHITE: I was the one going to take the deposition. MR. BENN: Yeah, Ed was there yesterday. THE COURT: Alternatively? MR. BENN: Well, we'll do what we have to do. THE COURT: Scheduling usually isn't my pay grade, but, you know, you can figure that out. Go ahead. MR. GILLEN: 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. THE COURT: 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 -- MR. BENN: We can live with this, and they would testify if we had language similar to this. THE COURT: 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. MR. BENN: Can I ask whether that would be reported? THE COURT: In what sense? When you say "reported," what do you mean by that? MR. BENN: "Reported" meaning in the books. THE COURT: 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. MR. BENN: No, the reason why I'm asking whether it would be published, I don't know whether your original opinion -- THE COURT: 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. MR. BENN: You have no idea. THE COURT: Oh, you'd be surprised. MR. GILLEN: 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, 2004 -- MR. ROTHSCHILD: Hypothetically? MR. GILLEN: Hypothetically. Would we be at liberty to say, did you hear anything else, did you see anything else? THE COURT: 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. MR. GILLEN: 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? THE COURT: 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. MR. GILLEN: Thank you. THE COURT: Anything from the plaintiffs? MR. WALCZAK: We have no objection to the proposed modification, Your Honor. THE COURT: 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 -- MR. BENN: I understand. I just wanted to make sure the word "affidavit" was in there. THE COURT: 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. MR. BENN: 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. THE COURT: 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 -- MR. BENN: We can say that we've restricted the order in such a fashion that we believe the reporters will testify. THE COURT: If I might be so bold, that we are satisfied with the resolution. MR. BENN: Thank you. THE COURT: 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. MR. BENN: 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. THE COURT: Because I'll adopt this, but I don't want to do this again. MR. BENN: I understand. THE COURT: And you don't want to do it again, I know, I recognize. MR. WHITE: 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. THE COURT: Yes. MR. WHITE: But can questions be asked as far as the context of those statements? THE COURT: Ask the question that you want to ask. MR. WHITE: 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. THE COURT: 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? MR. WALCZAK: 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. THE COURT: Well, what's your next day that would be available if not Friday? MR. BENN: Monday. THE COURT: Well, Monday I'll be in chambers in Williamsport all day. MR. WHITE: 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. MR. BENN: Tuesday and Wednesday is a Jewish holiday for me. I can't do it. MR. WALCZAK: How about tomorrow? MR. WHITE: I'm leaving tomorrow. THE COURT: 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. MR. WALCZAK: How about later today? THE COURT: 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? MR. BENN: No. Thank you, Your Honor. MR. WALCZAK: Thank you, Your Honor. (The discussion in chambers was concluded.) THE COURT: 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. MR. HARVEY: 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: Q. Please tell us your name. A. Julie Ann Smith. Q. Where do you live, Ms. Smith? A. 3007 Honey Run Drive, York, Pa. Q. And is that within the area covered by the Dover Area School District? A. Yes, it is. Q. And how long have you lived there? A. Fourteen years. Q. Do you have any children? A. Yes, I have two children. Q. How old are they? A. My daughter Katherine is 16, and my son Michael is 19. Q. Your daughter Katherine, what school does she attend? A. Dover High School. Q. What grade is she in? A. She's in eleventh grade. Q. Please tell us what you do for a living. A. I'm a medical technologist. Q. And please summarize for us your educational background. A. I graduated high school in 1979, and I graduated at York College with a degree in medical technology in 1984. Q. 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? A. Yes. Q. And tell us, when did you learn that? A. I learned that in June of '04. Q. And what was the basis for your knowledge? A. I read it in the paper. Q. Do you remember what you read? A. Yeah, I read it in the York Daily Record, and, yes, I do remember. Q. Please tell us what you remember learning at that time. A. That the school district was very concerned about approving a biology text that did not include creationism. Q. And do you remember anything else that you learned at that time? A. Not right off the top of my head. Q. Okay. Did there come a time when you learned that the school district board of directors had approved a biology text? A. Yes, they did in August. Q. And what was the basis for you learning that at that time? A. I read about it in the paper. Q. And did there come a time when you learned that the school district board of directors was considering a supplemental textbook? A. Yes. Q. And what was the basis for your knowledge of that? A. I learned that from the paper, also. Q. And what did you learn? A. That they were going to have Of Pandas and People in the classroom as a supplemental text to the biology book. Q. And did you learn about where that book was going to come from? A. It was donated. Q. Now, did there come a time when you learned that the board had made a change to the biology curriculum? A. Yes. Q. And approximately when was that? A. 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. Q. And did you attend that board meeting? A. No. Q. And did you learn anything else from reading the newspapers at that time? A. Well, that they were going to read the statement in the classroom, yes. Q. Okay. Now, I'd like to ask you to take a look in the notebook at what's been marked as P127. A. Yes. Q. Can you tell us what it is? A. 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. Q. Now, do you know approximately when you received this? A. Well, it says it was February, so I'm assuming it was February. Q. 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? A. Yes, I do. Q. And can you tell us what harm you believe that it has caused you? A. 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. Q. Did you ask her why she said that? A. 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. Q. And how did that harm you? A. Well, it goes against my beliefs. I have no problems with my faith and evolution. They're not mutually exclusive. MR. HARVEY: No further questions of this witness. THE COURT: All right. Cross-examine, Mr. Thompson. MR. THOMPSON: Thank you, Your Honor. CROSS-E XAMINATION BY MR. THOMPSON: Q. 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? A. Yes, I do. Q. Were you present in court for all the testimony that has been given in this trial? A. No. Q. When did you get to court? A. Tuesday morning. Q. Now, whose testimony have you heard so far? A. I heard some of Ken Miller's. I heard Barrie Callahan, Bryan Rehm. I heard the gentleman this morning. Q. Okay. You were asked to become a plaintiff in this case by the ACLU, were you not? A. No. Q. Didn't someone from the ACLU call you? A. 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. Q. And so the ACLU contacted you, and you agreed to become a plaintiff in this case? A. Yes. Q. 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? A. Yes. Q. That's when the board passed the resolution that changed the biology curriculum? A. I believe so, yes. Q. And that policy was implemented for the first time in January of 2005. Is that correct? A. That's correct. Q. In January, 2005, where was your son? A. My son was in college. Q. So he had already graduated from Dover High School? A. Yes, that's correct. Q. And in January, 2005, where was your daughter? A. She was in school. Q. What grade? A. She was in grade ten. Q. So you will agree with me that this biology curriculum really only affected, as far as the statement was read, ninth-grade biology students? A. No, that's not true. Q. So the statement was read to other classes? A. No, but it would affect all the students at the school. Q. Well, listen to my question. This policy provided that the statement was read to ninth-grade biology students. Do you agree with that? A. I agree it was read to ninth-grade biology students. Q. Okay. And your daughter had already graduated from the ninth grade? A. That's correct. Q. So at the time that this policy was implemented, both of your children were out of the ninth grade? A. That's correct. Q. Neither one of them would be subject to the statement being read to them. Is that correct? A. That's correct. Q. Okay. Now, you indicated to your lawyer that you got involved because of newspaper articles that you read? A. That's correct. Q. 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 -- A. That's not correct. Q. -- in 2004? A. In 2004, that's correct. Q. 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? A. In that year. Q. Okay. A. Before that, yes. Q. In 2003, you never attended a board meeting. Is that correct? A. No, I had attended board meetings previously. Q. I didn't ask you that question. I asked you, in 2003, did you attend a board meeting? A. I'm going to say I don't remember which board meetings I attended. Q. In 2002 -- MR. HARVEY: Objection. Arguing with the witness and beyond the scope -- MR. THOMPSON: I'm asking questions. MR. HARVEY: Excuse me, and beyond the scope of direct. THE COURT: Wait, wait. One at a time. Let him finish, Mr. Thompson. Finish the objection. MR. HARVEY: Objection, arguing with the witness and beyond the scope of direct. THE COURT: 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. MR. THOMPSON: I apologize, Your Honor. THE COURT: 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. MR. THOMPSON: Okay. BY MR. THOMPSON: Q. Is it true that you did not attend a board meeting in the year 2003? A. 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. Q. Is it true that you didn't attend a board meeting in 2002? A. 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. Q. And that was the year 2000, was it not? A. I don't remember. Q. Mrs. Smith, I'm going to hand you -- MR. THOMPSON: Your Honor, may I approach the witness? THE COURT: You may. BY MR. THOMPSON: Q. 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. A. You want me to read out loud starting on 18? Q. Line 18 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. A. "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" -- Q. Now give me your answer. So that the record will reflect, that was the question and now your answer, starting with Line 21. A. You want me to read it? Q. Yes. A. "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." Q. And then go on to the next page, and the question that Mr. Gillen asked you starting on Line 1? A. "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?" Q. "Was that 2003 or 2002," is that right, the question? A. That's correct. Q. Okay. And what was your answer? A. "I would say more like 2000." Q. So was that an accurate reflection of your memory at the time that the deposition was taken? A. Yes. Q. 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? A. If that's what I said, that's what I recalled at the time, yes. Q. 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: Q. Can you answer that question? THE COURT: Now, wait. She's not going to answer it until I rule on the objection. Elaborate on your objection. MR. HARVEY: 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. THE COURT: 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? THE WITNESS: No. THE COURT: Let's have the question read back, please. (Previous question read back.) THE WITNESS: That's correct. BY MR. THOMPSON: Q. 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? A. That's correct. Q. And I believe in your deposition you indicated that you looked at the morning newspapers almost on a daily basis? A. That's correct. Q. 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? A. That's correct. Q. What were the two -- what were the newspapers that you were looking at during this time? A. I read the Daily Record every morning. Q. What about the York Dispatch? A. Not regularly, no. Q. 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? A. That's correct. There were personal issues in my life at that time where I was not able to do that. Q. 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? A. That's correct. Q. You never called them. Is that correct? A. That's correct. Q. You never e-mailed them. Is that correct? A. That's correct. Q. Did you write letters to the editor about what the school board was doing? A. No. Q. 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? A. That's correct. Q. Okay. Now, did you ever speak to any of the teachers at Dover High School before you became a plaintiff in this case? A. No. Q. 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? A. No. Q. Did you ever receive any minutes or notes about what the Dover School Board was doing during this time? A. No. Q. You never sent anyone e-mails or any other communication regarding this issue. Is that a fair statement? A. That's a fair statement. Q. In fact, one of the issues in this case is this book Of Pandas and People. Is that correct? A. That's correct. Q. You never looked at the book Of Pandas and People before you became a plaintiff in this lawsuit, did you? A. 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. Q. Well, did you make any effort to go and look at it? A. I really wasn't interested. Q. Now, your attorney referred to a newsletter that you received in February. Do you have a copy of that newsletter in front of you? A. Yes. Q. And I believe you indicated that you thought the newsletter was sent in February, 2002? A. No. Q. Excuse me, 2005. Excuse me. A. Correct. Q. 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. A. "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." Q. Thank you. It was through this policy that you first learned about the statement that was going to be read. Is that correct? A. No, I believe -- no, I heard about it before. Q. But did you actually see the statement before? A. I don't think so. Q. 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? A. I believe so. Q. Okay. A. As far as I can tell. Q. 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? A. Yes. Q. 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? A. No. Q. 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? A. Yeah, I've heard that before. Q. 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? A. I did talk to people in the district, other people in the district. Q. Who did you talk to? A. People that I work with, other people in the district. Q. But you never even saw the policy until that newsletter came out. Is that correct? A. I got my information from the newspaper, yes. Q. And the newspaper. Now, have you ever had involvement with newspapers before? Have you been interviewed? Have you been interviewed by news reporters before? A. No. Q. 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? MR. HARVEY: Objection. No foundation that she has any experience as referred to in the question. THE COURT: Do you want to respond to that Mr. Thompson? MR. THOMPSON: Well, I think it's common experience and it's knowledge, it's common sense. THE COURT: 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: Q. Well, you said that you were upset by the policy because it conflicts with your religion? A. 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. Q. 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? A. Yes. Q. And up to that point, you were not even aware she was a member of a Bible club. Isn't that correct? A. That's correct. Q. And that it was -- she had a lot of friends who went to Protestant fundamental churches. Is that correct? A. Yes, she does. Q. And she received that information from her friends, her Protestant friends in school or in the Bible club. Isn't that correct? A. I would assume that's where she got her information, from the Bible club at school. Plus they talked about it. Q. And the fact that someone believes in intelligent design does not make that inconsistent with the Catholic faith, does it? A. I spoke to my deacon about this situation, and all I know is what he told me. Q. Is he a theologian? A. He's a deacon at St. Rose Catholic Church. Q. Do you know if he has any particular expertise in Catholic theology? MR. HARVEY: Objection again. Beyond the scope of direct, Your Honor. MR. THOMPSON: She brought the issue up of religion, Your Honor, and I'm exploring that. THE COURT: 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: Q. Now, the book Of Pandas and People, you don't mind that book being in the library, do you? A. No, I don't have a problem with it being in the library. Q. 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? MR. HARVEY: Objection, Your Honor. Mischaracterizes the testimony. THE COURT: In what sense? MR. HARVEY: I believe Mr. Rehm testified that the teachers did not agree to put the materials in the science class. MR. THOMPSON: Your Honor, my understanding in -- MR. HARVEY: And -- THE COURT: Now, wait, Mr. Harvey. Let Mr. Thompson speak. One at a time. MR. THOMPSON: 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. THE COURT: 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? THE WITNESS: Yes. THE COURT: Well, then go ahead. BY MR. THOMPSON: Q. Whether it's "concession" or "compromise," did you hear that the teachers had agreed to put Of Pandas and People in the science classroom? A. I don't remember exactly what he said yesterday. MR. THOMPSON: No further questions, Your Honor. THE COURT: All right. Thank you, Mr. Thompson. Any redirect? MR. HARVEY: No, Your Honor. THE COURT: 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? MR. HARVEY: That's correct, Your Honor. P127 is already in evidence. THE COURT: You may call your next witness. MR. HARVEY: 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: MR. HARVEY: Your Honor, again, may I make sure that she has the binder of exhibits? THE COURT: You certainly may. DIRECT EXAMINATION BY MR. HARVEY: Q. Please tell us your name. A. Christy Rehm. Q. Are you married, Mrs. Rehm? A. Yes. Q. Tell us the name of your husband. A. Bryan Rehm. Q. Please clarify for us one important question, and that is, exactly how old are your children? A. My children? Q. Yes. A. 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. Q. And where does your family live? I mean your immediate family, you and your husband and your children. A. 3690 Rock Creek Drive, Dover, Pennsylvania. Q. And how long have you lived there? A. Approximately five years. Q. And had you lived in Dover previously to that in your life? A. 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. Q. And please tell us where your children are right now in school, the grades, please. A. 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. Q. And the oldest three children, do they attend the public schools in Dover? A. 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. Q. And your daughter that's in the ninth grade, is that at the Dover High School? A. Yes. Q. And is she taking biology now? A. Yes, she is. Q. Please summarize for us your educational background. A. 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. Q. Do you work outside the home? A. Yes, I do. Q. What do you do? A. I'm a teacher, an English teacher. Q. Where do you teach? A. In a public school system outside of York County. Q. And what grade do you teach? A. High-school level, so tenth through twelfth grade generally. Q. 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? A. Yes. Q. Do you remember when that was? A. 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. Q. Did you attend a meeting of the Dover Area School District Board of Directors on June the 7th of 2004? A. Yes, I did. Q. And why did you attend that meeting? A. 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. Q. And can you recall anything that happened at that meeting on June the 7th? A. I recall a lot of things that were happening at that meeting. Q. Please tell us what you can remember about that meeting. A. 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. Q. Do you remember if any board member spoke back to her in response to her questions? A. 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. Q. Do you remember -- A. I'm sorry. Q. I'm sorry. A. 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. Q. Do you recall a young man by the name of Max Pell speaking at that meeting? A. 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. Q. Do you recall any other board members saying anything during the course of any discussion about the biology textbook? A. 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. Q. Do you recall anything else Mr. Bonsell said? A. At this time, no. Q. Do you remember anything else that was said by any members of the public at that meeting? A. At that meeting. Currently, I don't. Q. 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. A. Okay. Q. Do you have that in front of you? A. Yes. Q. Have you ever seen it before? A. This article, yes. Q. Did you see it at or around the date that it was published? A. Yes, I did. Q. What's the date on it? A. The date is June 9th, 2004. Q. Who is the author? A. The author is Joseph Maldonado. Q. And can you tell us what publication its from? A. Yes. It is from the York Daily Record. Q. Now, did you just have an opportunity to read it just a moment ago? A. Just now I skimmed it, yes. Q. 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. A. Yes. Q. Okay. Tell us what else -- after looking at that article, do you remember anything else that happened at the meeting? A. Yes, I do recall Bill Buckingham making comments about, you know, the apes and monkeys -- coming from apes and monkeys. And I also -- MR. MUISE: Your Honor, again, objection. It appears she's going to be reading from the article with her testimony. THE WITNESS: I'm sorry. THE COURT: 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? THE WITNESS: Yes. Sorry. BY MR. HARVEY: Q. Now, do you remember anything else that happened at that meeting? A. 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. Q. 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? A. Yes, I did. Q. And why did you attend that meeting? A. 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. Q. Now, tell us what you can recall of the June 14th, 2004 board meeting. A. 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. MR. MUISE: Objection, Your Honor. This is running into a narrative. THE COURT: Well, I think it's still responsive to the question. Do you want to put a question on the floor? MR. HARVEY: She was just thinking. BY MR. HARVEY: Q. Did you need to think and change your testimony in any way? A. I just wanted to make sure that I wasn't getting my meetings mixed up. THE COURT: You can finish your answer. Do you want to finish the answer, or is that your answer? THE WITNESS: 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: Q. Did your husband speak? A. 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. MR. MUISE: Objection, Your Honor. It's a narrative. The question was, did your husband speak. THE WITNESS: Yes, he spoke. MR. HARVEY: 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. THE COURT: Well, that answered the next question. That moots the objection, and you can move to the next question. BY MR. HARVEY: Q. Do you remember Bill Buckingham speaking at this meeting? A. 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. Q. Do you remember specifically anything he said? A. Yes. He made comments like, 2000 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. Q. Now, did you attend any other meetings of the Dover Area School District Board of Directors that summer? A. No, we didn't attend that summer. Q. And did you attend any meetings that fall? A. Yes. Q. Did you attend the meeting on or about October the 18th of 2004? A. Yes, we did. Q. And can you just tell us briefly what you can recall about that meeting? A. 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. Q. Did you and your husband stay for the whole meeting? A. No, we didn't. Q. 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? A. During the board meeting? Q. Yes. A. No. Q. Did you attend a meeting the following week, on or about November the 2nd, 2004? A. Yes. Q. And can you remember anything from that meeting? A. 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. Q. Do you remember anyone requesting access to -- A. Oh, yes. Q. -- a tape of the October 18th meeting? A. 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. Q. 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? A. 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. Q. 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? A. Yes, absolutely. Q. And can you please tell us how you have been harmed? A. 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. MR. HARVEY: Thank you. No further questions. THE COURT: 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.) Kitzmiller v. Dover Area School District Trial transcript: Day 3 (September 28), PM Session, Part 2 THE COURT: Mr. Muise, you may cross-examine. MR. MUISE: Thank you, Your Honor. CROSS-EXAMINATION BY MR. MUISE: Q. Good afternoon, Ms. Rehm. Your oldest child is 14 years old. Is that correct? A. Yes. Q. And your child's name is Alix? A. Yes. Q. And Alix is presently in the ninth-grade biology class at Dover High School? A. Yes, she is. Q. 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? A. 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. Q. And so she hasn't heard this one-minute statement be read in the class yet? A. She has not, no. Q. 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? A. Yes. Q. I believe you described these meetings as involving some heated exchanges between some board members and the public. Is that correct? A. Yes. Q. 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? A. 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. Q. Now, the controversy on the June 7th and June 14th meeting was surrounding the selection of a biology textbook. Correct? A. June 7th and June 14th? Q. Yes. A. Yes. Q. And the biology textbook that was in question at the time, I believe it was the 2002 version of the Miller-Levine biology book. Is that your understanding? A. It very well could be. I'm not sure what the edition in debate was. Q. 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? A. 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. Q. And, in fact, the school district purchased the 2004 Miller-Levine biology book to be used as the primary text for the ninth-grade biology class. Correct? A. Yes. Q. And that would be the textbook that your daughter Alix will be using? A. Yes, with the dragonfly on it. Q. She already has the book? A. She has the book, yes. Q. Have you looked through it? A. Have I looked through the book? Yes, I have looked through the book. Q. Do you have any objections with the book? A. No, I don't. Q. She wasn't given a copy of Pandas and People, was she? A. No, she was not. Q. 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? A. To my knowledge, the only required book is that book, in addition to supplemental materials that the instructor has. Q. Now, you made a comment in your direct testimony that intelligent design conflicts with your brand of religion. A. Yes. Q. Is intelligent design another brand of religion? A. 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. I 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. Q. And so your understanding is intelligent design is the same as Young Earth creationism? A. 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. Q. And so, again, you're associating Young Earth creationism with intelligent design? A. There is a connection in my mind, yes. Q. 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? A. 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. Q. 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? A. 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. Q. And I take it from your answer you have no objection to that? A. To following state standards, no, I have no objection. Q. 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? A. Yes, the PSSA test, yes. Q. And you have no objection to that? A. 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. Q. 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? A. I'm sorry, can you repeat that? Q. 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? A. Not only is that my understanding, but that is what I would expect. Q. And you have no objection to that? A. No, I don't. Q. Is it your understanding that because Dover is a standards-driven district, that students will not be tested on the intelligent design theory? A. As I know it and as it is written, there is no test on intelligent design. Q. And from your previous answer, I believe you do understand that the Dover School District purchased, for its ninth-grade biology class, the 2004 edition of the Miller and Levine biology book. Correct? A. Yes. Q. And you have no objection to that book being used in the class? A. No, I do not. Q. Is it your understanding that this biology book provides thorough coverage of Darwin's theory of evolution? A. Actually, did you ask me if it's my understanding or if -- Q. If it's your understanding. I mean, you have to testify about your knowledge, ma'am. A. 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. Q. Has Dr. Miller left the courtroom? A. 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. Q. 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? A. 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. Q. Do you have any reason to believe that what's in the biology book is inconsistent with what the scientific community -- A. Absolutely not, no. No, I would have no reason to believe that. Q. Is it your understanding that the book Of Pandas and People was placed in the library for students to review? A. Yes. Q. It's your understanding that no student was required to read any portion of the Pandas book? A. Right, just as no student is required to read anything that's in the library unless they choose to. Q. You have no objection to Pandas being in the library? A. 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. Q. 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? A. Can you say that again? Q. 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? A. 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. Q. 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? A. Yes, I am aware that there was a change. Q. Are you aware of that change? A. Yes. Q. Is it your understanding that some of these additional books that were put in the library are actually critical of intelligent design? A. 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. Q. They're in the library? A. Well, a parent -- the books that are critical to -- Q. Yes. A. I'm assuming that they had gotten there. Q. You never checked? A. 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. Q. Do you have any objection to these additional books being placed in the library? A. No, I do not. MR. MUISE: No further questions, Your Honor. THE COURT: Any redirect? MR. HARVEY: No, Your Honor. THE COURT: Ma'am, you may step down. That will complete your testimony, and you may call your next witness. MR. HARVEY: 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: THE CLERK: State your name and spell your name for the record. THE WITNESS: Sure. My name is Beth Eveland, B-e-t-h, E-v-e-l-a-n-d. DIRECT EXAMINATION BY MR. HARVEY: Q. Please state your name. A. Beth Eveland. Q. And where do you live, Ms. -- is it Ms. or Mrs.? A. Mrs. Q. Mrs. Eveland. A. 3300 Colonial Road, Dover, Pennsylvania. Q. And how long have you lived there? A. I've lived there approximately eight years now. Q. Are you married? A. Yes, I am. Q. Do you have children? A. Yes, I do. Q. How many children do you have? A. Two. Q. And how old are they? A. I have a seven-year-old daughter and a five-year-old daughter. Q. And what schools do they attend? A. They attend the Leib Elementary School in the Dover School District. Q. And do you have plans for your children to continue to attend public schools in Dover? A. Yes, I do. Q. And what are those plans? A. To continue keeping them, you know, going through the Dover School District. Q. And do you work outside the home? A. Yes, I do. Q. And please tell us what you do. A. I am a legal assistant. Q. 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? A. Yes. Q. And when was that? A. It was approximately June, 2004. Q. And do you remember how you learned that? A. I had read an article in the York Daily Record. Q. Now, I'd like you to look at what's been marked and is in the notebook before you as P46. A. All right. MR. GILLEN: 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. THE COURT: Well, what is 46? MR. HARVEY: It's a June 9th article from the York Daily Record. THE COURT: 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: Q. Did you read this article on or around June the 9th of 2004? A. Yes, I did. Q. And following reading this article, did you attend any meeting of the Dover Area School District? A. Yes, I did. Q. And approximately when was that? A. Approximately the end of June through the present. Q. 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? A. Yes, I did. Q. And what was the date of the next board meeting that you believe you attended? A. It would have been approximately June 15th, June 16th. Q. And can you tell us whether -- when you remember that you attended this board meeting? A. When I remember that I attended this board meeting? Q. Yes. A. 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. Q. And what is it about that June board meeting that made you remember that you were there? A. 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. Q. And do you remember anything that was said by any board members at that meeting that you attended in June of 2004? A. Yes, I do. Q. What do you remember? A. I remember Bill Buckingham making the statement, 2000 years ago somebody died on the Cross, can't someone take a stand for Him. Q. 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? A. I was shocked. I was just utterly shocked. Q. And did you do anything in response to that? A. Yes, I did. I had wrote a letter to the editor. Q. And was that before or after you attended that board meeting? A. 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. Q. And where did you send that letter to the editor, which newspaper? A. I submitted it to the three local newspapers, York Daily Record, York Sunday News, and York Dispatch. Q. And did you do anything, before you sent it to those papers, with the content of the letter? A. 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. Q. Now, please turn to what's been marked and is in the notebook before you as P56. A. Okay. Q. Do you have it in front of you? A. Yes, I do. Q. And can you tell us what it is? A. It looks to me to be a copy of a letter to the editor that I wrote. Q. And I'm going to ask you to read this letter into the record. A. Okay. MR. MUISE: Objection, Your Honor. This letter is hearsay. THE COURT: Say it again. I'm sorry. MR. MUISE: Objection, hearsay. THE COURT: Why is it hearsay? MR. MUISE: 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. THE COURT: Who wrote the letter? MR. MUISE: She wrote the letter. THE COURT: Overruled. BY MR. HARVEY: Q. Please. A. "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." Q. Now, that letter was actually published in the paper? A. Yes, it was. Q. And did you see it in the paper? A. Yes, I did. Q. And did you read any response to your letter in the paper? A. Yes, I did. Q. And can you tell us who submitted -- whose response did you read in the paper? A. It was a published response noting Heather Geesey as the author. Q. And who is Heather Geesey? A. She is a member of the Dover Area School Board. Q. And her response letter was published in what newspaper? A. I believe it was either the York Dispatch or the York Daily Record. Q. And please turn to what's been marked in the notebook before you as P60. A. Okay. Q. Does that help you remember, looking at it, what newspaper it was published in? A. It was published in the York Daily Record. Q. And what is that that's marked as P60? A. It is a letter from Heather Geesey to the editor in response to my letter. Q. And did you see it at the time? A. Yes, I did. Q. Please read that into the record. MR. MUISE: 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. THE COURT: Let me first view the exhibit. Do you want to respond to the objection? MR. HARVEY: 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. THE COURT: 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 -- MR. GILLEN: 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. THE COURT: 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? MR. GILLEN: That is correct, Your Honor. That's the representation that has been made in an affidavit, and I accept it. THE COURT: 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? MR. HARVEY: Your Honor, I would also note that it's an admission of a party opponent. THE COURT: 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? MR. HARVEY: 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. THE COURT: So it could go to truth inasmuch as it's an admission. Is that correct? MR. HARVEY: Exactly. THE COURT: All right. MR. GILLEN: 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. THE COURT: 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. MR. GILLEN: Thank you, Your Honor. BY MR. HARVEY: Q. Please read the letter. A. "This letter is in regard to the comments made by Beth Eveland from York Township in the June 20 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." Q. And what was your reaction to that letter when you read it in the paper, Mrs. Eveland? A. That really concerned me. Q. Why? A. 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. Q. Now, I'd like you to tell us, did you attend board meetings in 2004 after June? A. Yes, I did. Q. And which board meetings did you attend? A. All of them. Q. And do you believe that -- were you at the meeting on October the 18th of 2004? A. Yes, I was. Q. And did you hear the board discuss any reason for adopting the proposed curriculum change? A. No, I didn't. Q. Do you feel that you've been harmed by the board's actions? A. Yes, I do. Q. And please tell us how you believe that you have been harmed by the board's actions. A. 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. MR. HARVEY: Thank you. No further questions. THE COURT: All right. Cross-examine, Mr. Muise. CROSS-EXAMINATION BY MR. MUISE: Q. Good afternoon, ma'am. A. Good afternoon. Q. You said your oldest child is seven years old? A. Yes, she is. Q. And what grade is she in? A. She's a second-grader. Q. So she's seven years out from attending the ninth-grade biology class at Dover High School? A. That's correct. Q. Now, you have an interest in science. Is that correct? A. Somewhat, yeah. Q. I believe in your deposition you indicated in your day-to-day events you try to spark your children's interest in science? A. Yes, I do. Q. And you believe it's important to make science interesting for your children? A. Yes, I do. Q. You don't have any specific training in evolutionary theory. Correct? A. No, I don't. Q. 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? A. It is my understanding, yes. Q. And that students will be tested on subjects that are based on those standards, including the theory of evolution? A. Yes, that is my understanding. Q. And it's your understanding that the students will not be tested on the theory of intelligent design? A. That is also my understanding, yes. Q. 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? A. Yes. Q. And intelligent design is not part of those standard-based assessments? A. As far as my understanding, yes, it is currently not. Q. And these board meetings that you attended in June, the controversy was surrounding the purchase of a biology text for the class. Correct? A. Yes. Q. Do you know which book it was that the controversy was about? A. I believe at the time it was the 2002 Miller and Levine biology text. Q. 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? A. That's correct. Q. And what action did the board actually take with regard to the biology book? A. Well, with regard to the 2002 biology book? Q. With regard to the biology book for the ninth-grade class. A. 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. Q. And so they ended up purchasing the 2004 version? A. Yes, they did. Yes, they did. Q. Have you seen that book? A. I have briefly looked at it. Q. Now, my understanding is you went to these board meetings in June because of the controversy over the biology book? A. Yeah, part of it. Q. You said you just skimmed this biology book that was at the center of the controversy? A. 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. Q. 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? A. No. I just basically looked through the table of contents quickly. Q. 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? A. That's my understanding, yes. Q. Now, these meetings that you attended, would you describe them as being fairly contentious? A. Fairly contentious, yes. Q. Shouting matches, I believe the term you used in your -- A. I think a circus-like atmosphere would be quite appropriate. Q. Now, is it your recollection that the first time the Pandas book was mentioned was during the July meeting that you attended? A. I remember it being mentioned. I cannot give you a specific date. The dates run together after a while. Q. How about mentioning the theory of intelligent design, do you recall when you may have heard that theory first mentioned? A. 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. Q. 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? A. Not only them, but the vast majority of board members, yes, they were. Q. So they saw them as being personal attacks against them? A. Yeah. Q. Now, the first meeting you attended in July, you spoke with Joe Maldonado. Correct? A. Yes. And I believe the first -- as I testified earlier, the first meeting I actually had attended was the second meeting in June. Q. I guess my question is, the first meeting that you attended in July -- A. Yes, I had spoken to Joe Maldonado. Q. And who is Joe Maldonado? A. It's my understanding he is a reporter with the York Dispatch. Q. 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? A. Yes, he had. Q. And he asked you what your thoughts were about those comments? A. Yes, he did. Q. And he also asked you if you would ask for Mr. Buckingham's resignation on the spot. Correct? A. That's correct. Q. And you told him that you didn't think that was going to happen? A. I told him that I would just sit back and wait and see what happened. Q. And your sense for why he asked you this was that you thought he was trying to elicit something sensational for his paper? A. 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. MR. MUISE: May I approach this witness, Your Honor? THE COURT: You may. BY MR. MUISE: Q. 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. A. "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." Q. 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. A. "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." Q. Were you testifying truthfully during that deposition? A. Yes, I was, to the best of my knowledge. Q. You've had additional discussions with Mr. Maldonado about the happenings with the board. Correct? A. Yeah. Q. And you also had conversations with Ms. Heidi Bubb? A. Yes. Q. And she's a reporter? A. Yes. Q. For which paper? A. 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. Q. I believe you testified in your deposition that after the complaint was filed, you actually spoke with Ms. Heidi Bubb quite a bit? A. 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. Q. I'm sorry, ma'am, could you -- A. 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. Q. Let's go to Page 68 of your deposition transcript, ma'am. A. Okay. Q. 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? A. "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." Q. Now, back in July or August, 2004, you had communications with the National Center for Science Education? A. Yes. Q. I believe you joined the Listserv? A. Yes. Q. And you also had a discussion with them regarding an interview with the AP? A. It was a brief e-mail exchange, but yes. Q. Did you do that interview? A. No, I did not. Q. 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? A. Yes, I do. Q. 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? A. Yes. Q. And is it your understanding that those other resources included books that are actually critical of intelligent design? A. Yes. Q. Do you have any objection to that? A. No, I don't. Q. 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. A. Okay. Q. If you'd read from Line 16, which presents the question, until Line 2 of the next page. A. "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." Q. Were you testifying truthfully when you answered that question? A. Yes, I was. MR. MUISE: No further questions, Your Honor. THE COURT: Redirect? MR. HARVEY: No, Your Honor. THE COURT: 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? MR. HARVEY: Yes. We'll move it in after another witness, Your Honor. THE COURT: P56 is the witness's letter to the editor. Are you moving for the admission of P56? MR. HARVEY: Yes, Your Honor. THE COURT: 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? MR. GILLEN: Not at this time, Your Honor. That's it. THE COURT: 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. MR. MUISE: That's correct, Your Honor. THE COURT: 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.) Kitzmiller v. Dover Area School District Trial transcript: Day 4 (September 29), AM Session, Part 1 THE COURT: Be seated, please. All right, we remain in the plaintiff's case, and your next witness? MR. ROTHSCHILD: Good morning. Your Honor. Plaintiffs call Carol Brown to the stand. (Carol Brown was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: Please be seated and state your name and spell your name for the record, please. THE WITNESS: My name is Carol Honor Brown. That's C-A-R-O-L, H-O-N-O-R, Brown, B-R-O-W-N. DIRECT EXAMINATION BY MR. ROTHSCHILD: Q. Good morning, Ms. Brown. A. Good morning, sir. Q. You spelled your name Carol Brown, you stated your name Carol Brown, but you also go by another name? A. Yes, sir. I'm also known as Casey Brown. Q. Thank you. I've put a binder of exhibits in front of you that we'll be referring to during your testimony. They will also be projected on the monitor before you and on the large screen over to my right. A. Thank you, sir. Q. Where do you live, Mrs. Brown? A. 5401 Davidsburg Road. Dover, Pennsylvania 17315-4146. Q. How long have you lived there? A. Since 1983. Q. Can you describe your educational background? A. I'm a college graduate, sir, with some post graduate work. Q. Where did you go to college? A. I attended several college, including Millersville, Trenton State College, and Rutgers State University. Q. What did you take your degree in? A. Secondary education, sir. Q. And you said you did some graduate work? A. Yes, sir, I did. Q. Can you describe that? A. I did graduate work pursuant to archaeology, but I didn't complete my work. Q. Are you married? A. Yes, sir, I am. Q. And what is your husband's name? A. My husband's name is Jeffrey Allen Brown, that's capital J-E-F-F-R-E-Y, A-L-L-E-N. B-R-O-W-N. Q. And we can get some of the spellings later if the court reporter needs it, but that's quite all right. He'll be glad you got it right. Do you have any children? A. Yes. We each have a child from a previous marriage. Q. And did those children attend schools in the Dover area school district? A. They both did, sir. Q. Do you work? A. No, sir. Q. Have you ever worked? A. Yes, sir, I have. Q. Prior to retiring what was your last job? A. I was a correspondent, a newspaper reporter for the York Dispatch, the York Sunday News. Q. Why did you retire from that job? A. I realized that I was in a position of conflict of interest when I was sworn on to the board. Friends of mine who were fellow reporters sometimes asked me questions that I could not in good conscious answer unless I broke the oath I took as a school board director. Q. When did you become a school board director or a member of the Dover school board? A. 1995, sir. Q. And how did you become a member of the school board? A. I ran a write-in campaign to fill out the uncompleted two-year portion of a four-year term. Q. And did you have further elections? A. Yes, sir. I was reelected two more times. Q. What were the complete dates of your service as a member of the Dover area school board? A. December of 1995 until October 18th of 2004. Q. And why did your tenure end on October 18th, 2004? A. I resigned. Q. Why did you resign? A. I resigned because I was not in agreement with the direction the board had chosen to go in, and I realized that I could no longer fulfill my obligations to the members of the community and to the students. Q. Was there any specific issue that you disagreed with the direction of the board? A. It was the issue of intelligent design, sir. Q. The change in the biology curriculum? A. Yes, sir. Q. Has your husband ever been a member of the board? A. Yes, sir. Q. And what were the dates of his tenure on the board? A. I will be honest, sir. I'm not sure. He was on the board for five years. Q. And when did his tenure end? A. His tenure also ended the same night as mine. October 18th, 2004. Q. During your tenure on the school board did the school board have committees? A. Yes, sir. Q. And do those committees have chairpersons? A. Yes, sir, they do. Q. How are those chairpersons selected? A. The chairpersons are selected by the sitting president of the school board, sir. Q. Do the committees of the Dover school board, and you know, we can confine this to the time you were on the school board, did that include a curriculum committee? A. Yes, sir. Q. I've heard in this litigation actually multiple curriculum committees. Can you distinguish between the various kinds of curriculum committees that were in operation in the Dover area school district? A. Yes, sir, there are three basic kinds of committees in general and the curriculum committees in particular. The first is a citizens advisory committee for the curriculum. That is comprised of interested members of the community who wish to volunteer their time, usually under the aegis of an administrator of district, very often the assistant superintendent, sometimes the superintendent, sometimes the building principal. Then there is the district curriculum committee which is comprised of teachers and department heads. Also under the assistant superintendent, curriculum is part of his job, and then there is the board curriculum committee. It is comprised of a committee chairperson, and no more than three members of the board. The president, the current president of the board is ex officio member of all four committees. Q. Have you ever served on the board curriculum committee? A. Yes, sir, I have. Q. Were you serving on the board curriculum committee at the time of your resignation? A. Yes, I was, sir. Q. And were you serving on it throughout the 2004 year? And I mean calendar year, not school year. A. Until the point of my resignation, sir. Q. Can you describe how each of these three committees figure into the development of curriculum in the Dover area school district? A. Curriculum is put together by a combination of people. It usually begins with the district committee comprised of the teachers and any involved administrators. The curriculum may be revised because of changes mandated by the state or changes in the subject matter itself. Also going along with that would be changes in textbooks, the need for new textbooks or additional textbooks. The district committee would get input from the citizens advisory committee. They're very much a part of this, and the recommendations would then come back to the board and the board would meet both in conjunction with the teachers of the district committee as well as by itself, and then the members, the chairperson of the curriculum committee would bring any needed changes or textbooks to the full board for a vote during a regularly scheduled board meeting. Q. In the case of this curriculum advisory committee, this citizens committee, would they have meetings to discuss proposed curriculum changes? A. Yes, generally they do, sir, in the fall of the year. Q. And would they communicate their views on proposed curriculum changes to the other committees? A. Yes, sir, they do. Q. At the time of your resignation who besides yourself was on the board curriculum committee? A. The chairperson was Mr. William Buckingham, Mrs. Sheila Harkins, who was then board vice president, and myself, with Mr. Alan Bonsell, the president of the board as ex officio member. Q. And based on what you said in your earlier testimony Mr. Bonsell appointed Mr. Buckingham to chair that curriculum committee? A. Yes. That is one of the duties of the president. Q. Who were the other members of the board? I think you've mentioned yourself and your husband, Mr. Bonsell, Mr. Harkins, Mr. Buckingham. Who else was on the full school board as of the time of your resignation? A. Mrs. Jane Cleaver, Ms. Angie Yeungling, Mrs. Heather Gessey, and Mr. Noel Renwick. Q. Do you consider any of these people your friends? A. I did, sir. Q. All of them? A. Yes, sir. Q. Did you ever run with the other, any of these other members of the board on a slate of candidates? A. Yes, sir, I did. Q. Who did you run with? A. I ran with Mr. Alan Bonsell, Mrs. Sheila Harkins, and Mrs. Angie Yeungling. Mrs. Harkins and I were running for re-election at that point. Q. Did your husband Jeff Brown run with a slate of candidates? Actually let me just withdraw that for a moment. What year was that that you ran with this slate? A. Around 2001, sir. Q. Did your husband Jeff Brown ever run on the slate of, with a slate of candidates? A. Yes, sir. It was more informal however. Q. Who did he run with? A. I'm sorry, sir, I blinked. Q. I'm sorry. A. He ran with Mr. William Buckingham, Mrs. Jane Cleaver, and they endorsed Mrs. Heather Gessey, who was running as an independent candidate. Q. During your tenure on the school board did the administration have retreats? A. Yes, we did, sir. Q. Did the board have a retreat in January of 2002? A. Yes, we did, sir. Q. Where was it held? A. In the teachers lounge of the North Salem Elementary School. Q. At what time of day? A. It would have been early evening, somewhere around 6:30 to 7:00. Q. Who attended that meeting in January of 2002? And if you can name them best by position or type of position, that's fine. A. All of the administrators, that would be the senior administrators, including the interim superintendent, the building principals, and all of the assistant principals. I believe we then had two, the language arts supervisor, the technology coordinator, the supervisor of buildings and grounds, the supervisor of food services, the supervisor of transportation, and the supervisor of language arts. I think I have them all. Q. Did the board members also attend? A. And the board members, sorry. Q. Who was the superintendent in January of 2002 for the Dover area school district? A. Dr. Richard Nilsen was then our interim superintendent, sir. Q. And who was the assistant superintendent at that time? A. We did not have an assistant superintendent at that time. Q. At this retreat in January of 2002 did the members of the board get an opportunity to the identify issues that were important to them? A. Yes. Q. Can you describe how that happened, where the seating was, and how each board member had received that opportunity? A. We began by helping ourself to a buffet. Carol Stambaugh, our food services supervisor at that time, and her workers put out a buffet for us. So everyone helped themselves and found places around a large group of tables, grouped together in a large rectangular form, and Dr. Nilsen tried to seat us so that a board member was seated between an administrator, that was kind of every other one, and as we ate we had opening remarks. I had the honor to be the president of the board at that time, and I made a few remarks and Dr. Nilsen did as well. The gist of the remarks really was desire to air out some of our differences and also some of the issues in which our newer board members were interested in taking on, both praise and blame from different members. Q. Can you explain how the board members communicated the issues that were important individually to them? A. We took turns. Initially we had reports from each of the administrators, concerns they might have, achievements that they were very proud of that had been attained over the previous part of the school year or the previous school year, and then our board members took turns. Q. In preparing for your testimony today did you look at any documents to refresh your recollection about what you and other board members said at that January 2002 retreat? A. Yes, sir, I did. Q. And what was that? A. You presented me with copies of the minutes from two different re,treats sir. Q. And when you're describing these minutes, do you remember, do you have an understanding of who prepared them? A. Dr. Nilsen had taken notes, and then he presented copies of the minutes to us at a subsequent board meeting. Q. Could I ask you, Matt, to pull up Exhibit 21? Plaintiff's Exhibit 21? And that's also on your monitor in front of you. Is this the document that you're referring to? A. Yes, sir, it is. Q. Was Alan Bonsell a member of the board at the January 2002 meeting? A. Yes, sir. He had been sworn in in December. Q. And was this his first tenure on the board? A. Yes, sir, it was. Q. So he had been on the board for about three weeks at the time? A. Yes. So had Mrs. Angie Yeungling. Q. Do you remember what issues Mr. Bonsell identified at the January 2002 meeting? A. He and I shared some issues. One of them was policy. We had discussed uniforms. He also was very concerned with the state of morality, and he expressed a desire to look into bringing prayer and faith back into the schools. Q. Do you remember him identifying any other issue? A. He mentioned Bible, sir, and he mentioned creation, creationism. Q. What did he say about creationism? A. That he felt it should be a fair part of the, there should be a fair and balanced presentation within the curriculum. Q. Did he say what aspect of the curriculum he wanted creationism included in? A. I don't recall that he did, sir. Q. Was there a board retreat in the subsequent year in 2003? A. Yes, sir, there was. Q. And when was that held? A. That was in March of 2003. Q. And where was it held? A. That was also held in the teachers lounge at North Salem Elementary School. That was our normal meeting place. Q. And was it at the same time of day and evening? A. Yes, sir. Q. Did the same type of people attend the meeting, board members? A. Yes, sir. Q. Administrators? A. Yes, sir. Q. Was Dr. Nilsen the superintendent at this time? A. Yes, he was, sir. Q. And now the full superintendent, not an interim superintendent? A. Yes. Q. Was there an assistant superintendent by the time of this meeting? A. Yes, sir, Mr. Michael Baksa. Q. Did he attend the meeting? A. I believe he did, sir. Q. Did Dr. Nilsen attend the meeting? A. Yes, sir. Q. Did the board members also again attend the meeting? A. Two of the board members were absent, sir. Q. Who was that? A. I believe Mr. Buckingham and Mrs. Yeungling were absent, sir. Q. Did the board members identify important issues in the same manner that they had in January of 2002? A. Yes, they did, sir. Q. And did Dr. Nilsen again take notes of what the board members said? A. Yes, sir, he did. Q. Did he subsequently circulate a typed up version of those notes? A. Yes, he did, sir. Q. I'd like you to look at Exhibit 25, which will again appear on your monitor. Do you recognize this as the typed version of Dr. Nilsen's notes? A. Yes, sir, I do. Q. Did you also look at this in preparation for your testimony today? A. Yes, I did. Q. But you had seen it shortly after the retreat as well? A. Yes, I had. Q. At this time Mr. Bonsell was still on the board? A. Yes, sir, he was. He was then vice president of the board. Q. Did he have any role on the curriculum committee? A. He was chairperson of the curriculum committee. Q. Do you remember what issues Mr. Bonsell identified at this meeting? A. Some of the same issues, but in addition we were also upgrading our technology and working on the web site for the school district, and he had some concerns about keeping the site current because we were going through growing pains at that point, sir. One of the issues was coordinating -- I'm sorry, one of his issues which had been mentioned in the previous year but which he was stronger on the second time around was the importance of teaching our students about the Founding Fathers, about early American history, and the role of faith in the founding of America. Q. Prior to this time was the Dover High School teaching students, or all Dover schools teaching the students about Founding Fathers and our early colonial period? A. Yes, but not to, there was not the emphasis that I believe Mr. Bonsell wanted to see. Q. And what specifically was that emphasis? A. His emphasis was more on making our students aware of the importance of faith in the early history and founding of our country, sir. Q. Did Mr. Bonsell say anything about creationism at this meeting? A. I believe there was a brief mention, sir. Q. And what do you remember him saying? A. He reiterated some of the same concerns he had the previous year, but his emphasis was more on faith in our Founding Fathers, sir. Q. Did he say anything at this March meeting about how he wanted creationism taught in relation to evolution? A. I believe he mentioned the sciences this year, sir. For that year, I'm sorry. Q. Did there come a time when the school science department requested that the board approve the purchase of new science textbooks? A. Yes, sir. Q. And what textbooks were they recommending the school district purchase? A. We were looking at changes in our chemistry, physics, and biology textbooks on the high school level, sir. Q. When did this happen? A. The first time had occurred in the 2002/2003 school year, sir. Q. In the case of biology what book did they request? A. The Miller-Levine biology published by Prentice Hall. Q. What happened with that request during the 2002/2003 school year? A. We had an extremely tight budget, not that we always didn't, but it was very much so that year. And even though it was the cycle time for science books, we put off purchase for one year. Q. Did the teachers renew their request for science books in the 2003/2004 school year? A. They most certainly did, sir. Q. In the case of biology did they request the same book? A. Yes, sir. Q. At the time that this request was renewed who was the chair of the board curriculum committee? A. Mr. William Buckingham, sir. Q. And Mr. Bonsell was the president? A. Mr. Bonsell was the president. Q. Who were the other members of the curriculum committee at this time? A. As I stated earlier Mrs. Sheila Harkins, who was then board vice president, Mr. William Buckingham, myself, and Mr. Bonsell, Bonsell as president of the board. Q. And you certainly did say that, thank you. A. Okay. Q. Were there meetings of the full board of directors for the Dover area school district in June 2004? A. Yes, sir. Q. How many? A. Two, sir. Q. Did the board have a practice at this time in the 2004 time period of having two board meetings each month? A. Yes, normally the first and second Mondays of the month, sir. Q. Were there different functions for each of those meetings? A. The first meeting of the month was what we called a planning meeting wherein we have the same agenda that we would have for the action meeting, but we took the time and discussed the items that needed discussion, questions might be raised that would then be answered prior to the vote at the action meeting. Also items wherein we were in agreement, became part of the consent agenda, which required only one vote rather than multiple votes. Q. So it's fair to say when there was a new item that was going to be voted on in a given month, you talked about it a lot in the first meeting and you voted on it in the second meeting? A. Yes, sir. The only exceptions to that would be retroactive hiring or student discipline hearings, because you're under time constraints. Q. In these meetings in June was there discussion of a biology textbook? A. Yes, sir. Q. Was there discussion in one of the meetings or both? A. Both of the meet,ings sir. Q. Let's start with the first meeting. That would have been the planning meeting? A. Yes, sir. Q. Can you tell us what you remember about discussion about the biology textbook in the first June meeting, the planning meeting? A. I believe Mrs. Callahan, Mrs. Aralene Callahan, who's also known as Barrie Callahan, brought the subject up during the public comments section first and questioned whether or not we were going to be voting on the biology textbook. Q. What happened in response to, if anything in response to -- A. Mr. Buckingham indicated he was not prepared for that. Q. Did he say anything about the biology textbook? A. He viewed the biology textbook as in his words laced with Darwinism, sir. Q. Did you understand what he meant by that comment? A. To the best of my understanding I believed that he meant he felt there were too many mentions of Charles Darwin in the textbook. There was not a balance of material. Q. Did he say anything else on the subject of biology textbook or biology? A. Yes, sir. Q. What else did he say? A. There were a number of things that were said, sir. There were questions and comments, and Mr. Buckingham stated that, "Two thousand years ago someone died on the cross for us. It is time for us to stand up for him," and he said it in the context of wanting to include creationism side by side with Darwin's theory of evolution, with a small "E," sir. Q. Do you remember him saying anything else? A. That's the most vivid recollection I have, sir. Q. Do you read any newspapers as a regular matter? A. Yes, sir, I do. Q. What newspapers do you read? A. The York Dispatch and the York Daily Record and -- Q. What, I'm sorry? A. And the New York Times. Q. Was it your practice to read those newspapers during the June 2004 time period? A. Yes, it was, sir. Q. Do you remember reading articles about what was going on in the school board meetings, particularly on the subject of biology textbooks? A. Yes, sir, I do. Q. Would reading those articles refresh your recollection about whether Mr. Buckingham said anything else at the June meetings on this topic? A. Yes, sir. Q. I'm going to ask you to look in your binder at Exhibits 45 and 46. There are two -- MR. GILLEN: Your Honor, may I have permission to voir dire the witness? THE COURT: On what point, Mr. Gillen? MR. GILLEN: On the point of whether she's seen the article prior to her testimony here in court today, and if so when. THE COURT: If that's an objection that she hasn't seen them, you can interpose the objection. I think that would be the more appropriate way to do it. MR. GILLEN: Can we have a side bar, judge? THE COURT: You may. (Side bar at 10:07 a.m.) MR. GILLEN: This just occurred to me, and I don't want to surprise these guys, so I apologize for that because just occurred to me. Did she look at them yesterday? And if I asked her, the judge allows me to voir dire did she look at them yesterday? MR. ROTHSCHILD: I'll ask her. I mean -- MR. GILLEN: Because this is my, this is the only concern I have. We all know that there's an exceedingly fine line between refreshed recollection and recitation. If she looked at them yesterday and they refreshed her recollection, but she can't remember today, I think that that would be crossing the line. THE COURT: You lost me, but I'm admittedly dense on occasion. MR. GILLEN: Well, what I'm saying is this. I fully acknowledge you can look through documents to refresh your recollection in genuine refreshed recollection -- THE COURT: So you're positing that she may have looked at the article yesterday, and that entails what ? MR. GILLEN: No, I'm not, I'm not saying that. What I'm saying, judge, is if it refreshed her recollection yesterday -- THE COURT: She shouldn't be able to look at it today? MR. GILLEN: Right, because what is she doing today? If she can't remember it for 24 hours, you got to wonder whether it's recollection or recitation. THE COURT: Well, you know, here's what we'll do, because -- MR. ROTHSCHILD: May I respond, Your Honor? I mean, it's very common for a witness to just under the pressure of testimony to forget something that is very familiar to her, and I mean it's, you know, he can certainly ask her the question whether she looked at this article yesterday and whatever evidentiary effect that has, but I could have shown her it just today. THE COURT: Well, I think this. I think the defense has raised is a valid concern that when you use these articles that there's a strong temptation on the part of a witness to, and I think that's human nature, to look down and to read from something that they just refreshed their recollection. So let's do this in an effort to be fair. Why don't you ask her to review the article, take the article from her when you do the questioning. Then she's suitably refreshed her recollection, that she can't use it, and that will take care of the objection in a Solomon-like way. I know of no better way to do it, because I don't know that the distinction that she looked at it yesterday as opposed to today, it might make logical sense, I'm not sure that there's any thought as to that, but -- MR. GILLEN: And truly it just occurred to me and it just seems -- and that's all I'm trying to do, make sure it's genuine refreshed recollection. I know that you're a judge and you'll be mindful of that. I just want to, I think the things you've sketched out is fair. THE COURT: Why don't we just have henceforth and, you know, as a rule when you're going to use articles to refresh recollection, why don't you have them read it, give them all the time they need, tell them that they have all the time that they need to read it, then snatch it from their hands. MR. ROTHSCHILD: Can I have them close the notebook? Would that be sufficient? THE COURT: Or close the notebook, you know, whatever you do, because there is a natural temptation to look down. I think we all have that when it's right in front of us, and I think that will take care of Mr. Gillen's concern. MR. GILLEN: Thank you, Your Honor. (Side bar concluded at 10:14 a.m.) THE COURT: You may proceed, Mr. Rothschild. BY MR. ROTHSCHILD: Q. Mrs. Brown, have you had a chance to look through Exhibits 45, which is an article by Heidi Barnhart-Bubb in the York Dispatch dated June 9, 2004, and an article that we've marked as P-46 by Joseph Maldonado in the York Daily Record, also dated June 9th, 2004? A. May I have a moment? Q. Yes. Certainly. (Brief pause.). A. I'm sorry, sir, what was the second one? Q. Exhibit, I think I said first P-45 and the second one would be P-46. A. P-46? Thank you. (Brief pause.) A. I'm sorry, sir, I can't read the second one. I'm familiar with the gist of it, but I can't read it. Q. Just too hard to read? A. Yes, sir. The printing is too small. Q. I apologize for that. A. That's fine. Q. Could you now close your notebook? Thank you. Has that reading the article you could read, P-45, I got one of them right, refreshed your recollection about anything else that Mr. Buckingham said at the first meeting in June? A. He repeated his statement he had made in late fall of 2003 regarding his disbelief in the separation of church and state. He referred to the separation of church and state as being a myth, and he stressed the importance of teaching creationism because he felt we were doing our students a disservice. Our board president agreed with him that there were only two theories of the origins of life, and it should be taught side by side, evolution and creationism. Q. And when you're referring to the board president now, you're not referring to Mr. Buckingham but Mr. Bonsell? A. My apologies. President Alan Bonsell. Q. Do you remember board member Noel Renwick saying anything at this discussion? A. Mr. Renwick agreed with the concept of teaching creationism in school. Q. Did the topic of the biology textbook and the general subject matter of evolution or biology curriculum come up again at next board meeting in June? A. Yes, it did, sir. Q. And that would be typically the action meeting? A. Yes, sir. Q. What do you remember, again focusing on this subject, about what was, what was said at this board meeting? A. Mr. Buckingham continued his objection. There were comments from the audience, including what I can only describe as a Chautauqua by Mr. Buckingham's wife, Mrs. Charlotte Buckingham. Our normal public comment is limited to five minutes per person, and Mr. Bonsell as board president chose to allow her to continue on for between ten and fifteen minutes, sir. Q. Educate me, what's a Chautauqua? A. Sorry, sir. A Chautauqua to me as I grew up is an old time Christian tent revival. Very often they were held at the York Fairgrounds. I mean no disrespect, but the quote was come to Jesus meetings. Q. That's not an expression that Ms. Buckingham used at the meeting? It's just how you're describing these tent revivals? A. Actually she described how to accept Christ as your personal savior. She read portions of scripture and lectured us on our responsibilities to teach our children the truth. Q. Did she talk about the subject of evolution or creationism in this talk? A. She spoke very vehemently in favor of creationism and against evolution, and she exhorted us as a board to do whatever it took, even to the point of taking it to the Supreme Court, which her husband had also stated. Q. How did the board members besides yourself react to Charlotte Buckingham's statement? A. There were muttered amens, sir. Q. Do you know who said them? A. I can't tell you every one who said them, but I heard them on either side of me. Q. Who was sitting on either side of you? A. To my left was Ms. Heather Gessey, to my right was Mr. William Buckingham. Q. Did you understand Mrs. Buckingham to be speaking in support of her husband's position on this issue? A. Very definitely, sir. Q. Why did you come to that conclusion? A. She made it abundantly clear in her language, sir. Q. Do you remember anything said by board members at this second meeting in June relating to the subject of the biology book, evolution, creationism. A. There was disagreement between my husband and Mr. Buckingham. We were concerned about the legality. When I say we, my husband and I had discussed this at home. We were concerned that we could get into trouble if we brought in the idea of creationism and did not give equal time if you will, sir, to all faiths, to all beliefs in the origins of life. It was one of the first times that I proposed offering an elective course called comparative world religions on the high school level so that our students could be introduced to the major world faiths and the way in which they're the same and the way in which they differ, in particular the fact that every major world religion has at its core what we Christians call the golden rule. Do unto others as you would have them do unto you. The words may vary, but the intent is the same. Q. You described I guess sort of verbal jousting between your husband and Mr. Buckingham. What did Mr. Buckingham say in that interaction? A. Mr. Buckingham in essence accused my husband of cowardice because my husband expressed concern that he didn't think we should be doing this. Verbatim he told my husband that he was glad he had not been fighting during the American Revolution because we would still have a queen on the throne ruling our country. Q. Do you remember anything else Mr. Buckingham said at this meeting on the subjects that we're talking about, the textbook, evolution, education? A. He was not concerned about us getting into any legal trouble, and he felt that in taking the position he did in desiring to go beyond our normal duties, to go into areas that had previously been ruled upon by the Supreme Court, that he was not violating his oath of office. Q. Do you remember anything else he said? A. Not one specific thing, sir. I know that when I quoted from the Treaty of Tripoli of 1787, I believe it's Section 13, to whit where president John Adams makes the point that we do not have a state religion, Mr. Buckingham was not favorable in his response, sir. Q. And is that everything that you remember? A. To the best of my recollection, sir. Q. Were you reading the York papers during this time period after the second meeting? A. I did at that time. Q. Do you believe that reading those articles would refresh your recollection about what occurred at this second board meeting in June? A. Probably, sir. I'm sure I've missed things. Q. Could you turn to, and I hope these are more readable than the ones I previously handed to you, I think they are, Exhibits 53 and 54 in your notebook? And again I would ask that you read them, and then close the notebook and I'll ask you some more questions. (Brief pause.) Q. Ms. Brown, are you able to read those? A. To some extent. Sorry. (Brief pause.) Q. Ms. Brown, a suggestion was made actually by everybody in the room that we can put this on the monitor and that Matt can actually make it more readable, and so let's try that and let me -- A. I'm sorry. Q. You just tell him when you're done reading that and you can go to the next page. A. Thank you. THE COURT: Take your time. THE WITNESS: I'm sorry, I have a vision impairment. THE COURT: I understand that, and this is not a test. You just take all the time you need to read it. THE WITNESS: I don't know how to turn it, sir. (Brief pause.) THE WITNESS: Thank you, sir. BY MR. ROTHSCHILD: Q. Just let me know when you're done reading this article and we'll go on to the next one. A. I'm finished, sir. Q. Did you get all the way to the bottom there? In could you pull up P-54 and do the same for Ms. Brown, and I'll try to remember that for future documents. A. Thank you, sir. Q. Having read the two articles, and just for the record that's P-53, which is a July 15th article by Joseph Maldonado in the York Daily Record, and P-54, which is a June 15th, 2004 article in the York Dispatch written by Heidi Barnhart-Bubb, do those refresh your recollection about anything else that Mr. Buckingham said at this second meeting in June? A. Yes, there were a combination of things, and my apologies for mixing up the comments when they were made. The comments reported in the newspaper articles were accurate in all respects, sir. Q. Are you describing something you mixed up? A. The comments concerning two thousand years ago, and at the first meeting I had forgotten the fact that there was a representative from the Americans United for the Separation of Church and State present, and he took exception to Mr. Buckingham's stance and stated comments in very strong terms stating that we would find ourselves in legal difficulty if we continued on this path. And there was also a voice of reason. Pastor Warren Eshbach, who's a retired pastor at the Church of the Brethren, discussion on this had been going on in the community for some time, and it is obvious that there were strong feelings on all sides. That was apparent in both meetings from comments, not only from my former fellow board members but from members of the audience. Mr. Eshbach, Pastor Eshbach urged us to find a compromise position. Unfortunately by the second meeting we had not reached a compromise position since that had solidified. Q. And what do you remember about that second meeting after having reviewed the two exhibits? A. They did quote me more than I recall. Q. Let me just try and refine the question. Do you remember anything more about what Mr. Buckingham said at the second meeting after having reviewed -- A. Again he was adamant in his statements, and he apologized for some somewhat insulting remarks that he had made at the prior meeting. I personally took offense at his apology because of his tone, but he did make the apology. Q. One of the things that you testified about is that this two thousand year ago statement, I think you said it was in the first June meeting. Does reading these articles refresh your recollection about which meeting it occurred? A. I switched the meeting, sir. Q. When was that comment? A. It would have been at the second meeting, sir. Q. Thank you. Mr. Buckingham has testified in a deposition in this case that he didn't say that comment in either of the June meetings, he had said it at a much earlier meeting. Based on your recollection is that accurate? A. No, sir, it is not accurate. The comment that he made at the June meeting that he had made previous, there were two. One was that the separation of church and state is a myth, and the other related to anyone, anyone who does not agree with bringing faith into the schools is un-American and should return to the place from which he or she came. Those two statements verbatim, they are not exact, I know that, were first made by Mr. Buckingham at the November 10th, 2003 board meeting, and it was an entirely different subject, sir. Q. And they were repeated again in the June meeting? A. They were indeed. Q. But the two thousand years ago statement, that you recall as having being said at a June meeting? A. Most definitely, sir. There is no doubt in my mind. Q. Was the purchase of a biology book resolved at either of these June meetings? A. No, sir, it was not. Q. Were any other biology books under consideration at the time of these June board meetings? A. Not at that point in time, sir. We had already discussed a number of texts in curriculum meetings with the teachers. Q. And their recommendation at this time was the Miller-Levine book? A. They felt, and I would have to agree that it fits, it fit the best of any of the textbooks available into our curriculum instructional guide and also with the then current state academic guidelines. Q. After these meetings in June did the board curriculum committee meet to discuss the biology books? A. I'm sorry, sir. Yes, it did. Q. When was that? A. It was that same week I believe, and I had been in error on the date, but I believe it was that same week. Q. After the -- A. The second meeting in June. Q. And before or after the second meeting in June? A. After the second meeting in June, sir. Q. Where did this occur? A. To the best of my recollection it occurred in the conference room at the high school, but I may be in error. It may have been in the conference room in the administration building. Q. Who initiated this meeting? Who asked that it be had? A. I believe it was a combination. We all wanted to resolve the issue, sir. Q. Who attended the meeting? A. Representatives from the science department at the high school. To the best of my recollection Mrs. Bertha Spahr, who was then head of the science department, and ninth grade biology teachers Mrs. Jennifer Miller and Mr. Robert Eshbach who, is the son of Pastor Eshbach. Mr. Michael Baksa, the assistant superintendent. Mrs. Sheila Harkins, Mrs. William Buckingham, and myself. And Mr. Bonsell might have been there. But I cannot be certain. Q. What happened at that meeting? A. Basically Mr. Buckingham presented a list of his objections to the text, and we then reviewed them one by one. Q. How many objections are we talking about? A. I recall somewhere around twelve, fourteen. Q. Did these objections have any common theme? A. All of the objections, all of the page numbers that he objected to were listed in the index under Charles Darwin or Darwin's theory of evolution. Q. I'm going to ask you, Matt, to pull up Exhibit 31, please. Do you recognize this as being the Prentice Hall biology textbook that was under consideration? A. Yes, I do, sir. Q. And Matt, could you turn to page 12 of the document? And actually pull up page 13 as well. Can you these those two pages on your monitor? A. I recognize them, sir. I cannot read them. Q. And what do you recognize them to be? A. This was part of the introductory guidelines of science. Mr. Buckingham objected to Mr. Charles Darwin's inclusion, I believe it's 1859 when he first published his findings on theories of natural selection and related materials. Q. Your Honor, may I approach the witness? THE COURT: You may. Q. I'm going to hand you a copy of the book if you want to refer to that, in addition to the page on the monitor. A. Thank you, sir. This is a standard time line, sir. Q. And was this one of the pages that Mr. Buckingham objected to? A. Yes, sir, it was indeed his first page that he objected to. Q. And what was his objection about this page or pages of the textbook? A. There were no mentions of creationism or of God. Q. Did he object to the mention of Charles Darwin on the time line at 1859 when he published origin of species? A. He felt that we were misleading our students, not telling them the truth. Q. By putting Mr. Darwin on the time line? A. Yes, and by not including mentions of the theory of creationism and God as creator. Q. Matt, could you turn to page 408 in the textbook? And Ms. Brown, if you want to take a minute and turn to that page? A. I'm getting there. Yes, sir. Q. This is a page that begins with the heading "Speciation in Darwin's finches." Was this among the items in the book that Mr. Buckingham objected to? A. That was his last objection, sir. Q. And what was his objection to the page about Darwin's finches? A. Because the finch had been named for Charles Darwin. Q. Did he say anything else about what he was objecting to? A. That was his objection, sir. Q. Darwin's name precedes finches, and that made the textbook objectionable? A. Yes, sir. Q. Did he say anything else about why he objected to the textbook? A. He felt that it didn't give a balanced presentation. I don't believe that he had thoroughly read the text because he made reference of man ascending from lower species of anthropoids, and that is not part of the text material, sir. Q. Did he say anything about what was missing that deprived the book of balance? A. The theory of creationism with God as creator of all life. Q. Did the teachers say anything in response to Mr. Buckingham's critique of the biology textbook? A. We discussed each of his objections in great length. I say we advisably because I was part of the committee. The teachers explained that in the case of the science time line that this is just standard part of any text in the sciences. It basically gives the students a reference point. They explained in great detail that they do not nor have they ever taught the origins of life. We did not have a policy concerning this, but we had custom. This was what the science teachers in conjunction with one another had to come up with in response to any student question. If a student asked about the origins of life, our teachers made it a custom to refer the students to their parents or their pastors in their home churches. They indicated they did not feel qualified to cover this subject, nor was it part of our curriculum. Q. Did Mr. Buckingham bring up any other subjects relating to evolution? A. I believe he may have mentioned some kind of tape or CD or a tape. I'm not certain if it was that meeting, sir. Q. Did he say anything about a mural that used to be displayed in the high school? A. Yes, sir, he did. Q. Give us some background about the mural that was in the high school. What was the mural? A. The mural was a senior art project by one of our former students. It was a wall-sized mural, and it depicted the ascent of man in a very graphic fashion, there was nudity, but it was his perception the way human beings have evolved based on his studies. Q. And was this displayed in the high school? A. When he donated it to the school it was placed on one of the walls of the science section. Q. What happened to that mural? A. When we began our building project many things were removed, and the wall, the mural was taken down. It was to be removed to safety. Our then current supervisor of buildings and grounds was deeply offended by the mural and took it upon himself to burn it. Q. Do you know why he burned it? A. He told me himself he felt that it was full of lies and it offended his religious faith, and he had a granddaughter who was coming into the high school at this point in time into the ninth grade and he did not want her or any other student to be exposed to the obscenity, sir. Q. What happened to this individual as a result of destroying the mural? A. He was reprimanded and subsequently retired. Q. What did Mr. Buckingham say about the mural at this curriculum committee meeting? A. He knew Mr. Reeser, they attended the same church. He was in sympathy with Mr. Reeser's actions. He felt Mr. Reeser had done the correct thing and that we were wrong to accept donations of this nature from our students or anyone. Q. Did he say why Mr. Reeser had done the right thing? A. He had removed an offensive obscene thing. Q. Did anyone respond to that statement by Mr. Buckingham at this meeting, this curriculum meeting? A. I did, sir. Q. What did you say? A. I said that it was not Mr. Reeser's place to make that decision. Q. Did Mr. Baksa say or do anything at this meeting to respond to board members' concerns about the textbooks? A. That came later in the meeting, sir. As part of our ongoing discussion I believed Mrs. Harkins, and I may be mistaken, but I think she first mentioned the idea of investigating what other districts, non-public schools were using in terms of science textbooks. By the end of the meeting to the best of my recollection Mr. Baksa had volunteered to do such research and bring the reports back to us, sir. Q. Did there come a time during the summer of 2004 when another book was being proposed for the high school biology class? A. Yes, sir. Q. And what was that book? A. Of Pandas and People, sir. Q. How did the book Of Pandas and People first come to your attention? A. During a phone conversation with Mr. Michael Baksa the last weekend in July of 2004. Q. What did he communicate to you? A. It was just prior to the weekend, he communicated the fact that Mr. Buckingham had proposed an adjunct alternative text. Q. And did he say it in that -- was this in a phone call or a face-to-face meeting? A. That was a phone call, sir. Q. And did he say what that book was? A. He did indeed, and told me that we had several copies within the district. Q. And did he say the name? A. Of Pandas and People. Q. Was this the first you had heard about Mr. Buckingham's interest in adding Pandas to the high school biology class? A. Yes, it was, sir. Q. What did you do when you heard this from Mr. Baksa? A. My husband was home, he and I discussed it and felt that we needed to try and read as much of the material as we could prior to the following week's board meeting so that we were at least cognizant of what was inside the book. Q. Were you able to get a copy of the book? A. Yes. They did not have any copies available at the district administration office, but we learned that Mrs. Harkins had borrowed one of the copies, so she was finished with it, my husband picked it up from her home. Q. Did you read it? A. Yes, sir. My husband and I took turns reading it that weekend. Q. Did you do anything else at this time to investigate the book? A. Yes, sir, I did, because I was totally unfamiliar with the publisher and did not know the authors of the text. I researched on-line sir. Q. What kind of on-line sites did you go to to find out information about the book? A. I researched through scientific reviews, scientific journals, and the publishing houses themselves. I was looking for reviews of this, any other text materials, textbooks that this particular publishing house had brought forth, and I found none. I also wanted to know where it was being taught within America, and in my research I learned that it was not intended for the high school level, that it was written as a college level text, and I was unable to find any high schools, public or non-public, anywhere in the United States who were using the text. Q. What conclusions did you draw about the book based on your own reading of it? A. I said it at the meeting that I found it to be poor science and worse theology. Q. And what meeting did you say that at? A. The first meeting, the meeting in August, sir. Q. And before we get to that meeting, what caused you to come to that conclusion upon reading the book? Why don't owe start with the poor science and we can switch to poor theology. A. Reading the material, the authors obviously had some scientific background. They had some impressive letters behind their name, but they took exhibits, facts, and seemed to twist them around to fit what they were proposing as an explanation for the origins of life, intelligent design. At no point in the text did they use the term God or creationism but, it would have been very, very easy throughout the entire text to replace intelligent design with the word creationism without changing the meaning in my opinion. Q. Did this book Pandas come up as an issue at the next school board meeting? A. Yes, sir, it did. Q. That was in August? A. Yes, sir. Q. Did you gain an understanding about how Mr. Buckingham wanted the book Pandas be used at Dover High School? A. Mr. Buckingham stated at that meeting that he would give us our biology book if we gave him Of Pandas and People to be used side by side. Q. When you say gave it to you, what do you mean gave it to you? A. Mr. Buckingham made it very clear that he had the votes to prevent us from passing the motion to purchase the textbooks we so desperately needed unless we were willing to agree to purchase Of Pandas and People at the same time. Q. So -- A. In essence what he said was if we voted for Of Pandas and People, he would release his votes to give us our biology text. Q. So Mr. Buckingham was going to deprive the students at Dover High School of the biology textbook that their science faculty was recommending unless he got his Pandas book? A. Yes, sir. Q. Was there a vote taken on the biology textbook? A. Yes, sir. Q. And what was the result of that vote? A. It was a four-four tie. We lost. Q. Because I take it a tie goes to the defense? A. Yes, sir. Mrs. Jean cleaver was not present for the meeting. Q. If it's a four-four tie the book is not approved? A. Yes, sir. Q. Same way the Supreme Court works? A. Yes, sir. I think. Q. Duly admonished. Ms. Brown, who were the people who voted for the approval of the -- let me just back up. When we're talking about approve the vote here, this is on the Miller-Levine book? A. Yes, sir. Q. And who voted for the approval of the Miller-Levine book? A. Mr. Alan Bonsell, the president of the board. Mr. Noel Renwick. My husband, and myself. Q. And who voted against the approval of the book? A. Mr. William Buckingham, Mrs. Heather Gessey, Mrs. Jean Cleaver, and Mrs. Angie Yeungling. I'm sorry, not Mrs. Jean cleaver, she was not present. I'm going across the table. Mrs. Sheila Harkins. Q. Thank you. A. My apologies. Q. Was there a second vote? A. Yes. Q. How did that happen? A. A person who was on the winning side of the vote has the right to ask for a revote to be taken, and after much discussion Mrs. Angie Yeungling chose to ask for a revote, and she changed her vote because as she put it, "We have to let the kids have their books." Q. So at that meeting the Miller-Levine book was approved? A. Yes, sir, it was. Q. Was there any vote taken on Of Pandas and People? A. No, there was not a direct vote taken. Q. What happened after that in the school district on the subject of Pandas? A. One of the things that we had done to work through a compromise on the text, and we thought we had a compromise going into the meeting regarding approval of the Levine text was to change our policy on gifts and donations. As policy chair I brought a revised policy forth on this to allow our superintendent Dr. Nilsen to have the primary responsibility of choosing to accept or reject gifts and donations. If he chose to reject, he was required to give a reason in writing. And by this time we had approved that and we did not purchase Of Pandas and People. They were donated, between fifty and sixty copies were donated anonymously to the school district, and according to that policy Dr. Nilsen accepted them. Q. You said they were donated anonymously. Did the board or the school district ever announce publicly who donated the books? A. Not to my knowledge. My only recollection on that point is that Dr. Nilsen stated they were donated anonymously. Q. Was Dr. Nilsen asked who donated them? A. Yes, he was. Q. Did he disclose that information? A. They wished to remain anonymous is I believe the way he put it. Q. Do you know who donated the books? A. I have heard rumors, sir. Q. You have no personal knowledge? A. Only through rumors. Q. Can you tell us who you heard donated the books? A. My understanding from various friends is that contributions were solicited in Mr. Buckingham's church, that was also Mrs. Cleaver's church, and they purchased some of the books. I understand or I heard rumors to the effect that Mr. Alan Bonsell's father, Mr. Don Bonsell, who had served on the board prior to his son, also donated some of the texts. Q. Was it your understanding that the donated books were to be placed in the school science classrooms? A. They were placed in the school science classrooms, sir. Q. Was there a meeting of the curriculum, the board curriculum committee, in August of 2004? A. Late August, sir. Q. Did you attend that meeting? A. Part of it, sir. Q. Who else attended that meeting? A. Because I was not there for the whole meeting I can't be totally certain, but to the pest of my knowledge science teachers were present, Mrs. Miller, Mr. Eshbach, and I believe Mrs. Spahr, and I believe all of the aforementioned board members were there. Mrs. Harkins, Mr. Buckingham, Mr. Bonsell, and Mr. Baksa. Q. And yourself? A. And myself, part of the meeting. Q. At that meeting were materials handed out? A. Yes, sir, we received materials from Mr. Baksa. Q. And would you turn to page 660 in your binder? And Matt, if you could pull up the first page of 660? And actually if you can, it may be easier just to flip throughout binder initially, Ms. Brown, just to look at the contents of the document, and when I ask you specific questions we'll use the monitor. A. Yes, sir. Q. Do you recognize the documents that are in your binder at Exhibit 660 as the materials Mr. Baksa handed out to you? A. Yes, sir. Q. And there are four pages to that document? A. Yes, sir. Q. The first is, it says, has the heading "Dover area school district survey of biology books used in area schools"? A. Yes, sir. Q. And there's handwriting at the top of the page in rather large letters and numbers. Whose happened writing is that? A. That's my handwriting. Q. And that depicts the date of August 27th, 2004? A. To the best of my recollection. It coincided with the curriculum meeting I had noted on my calendar at home. Q. Did you have a practice of dating the documents you received as a member of the school board? A. Yes, sir, I did, and I evidently had made, I don't recall, but to the best of my knowledge based on past practice I made an error in the date, and the date was corrected. Q. And there's also handwriting under the heading "Textbooks used," it says Modern Biology if my reading is correct. Do you know whose handwriting that is? A. Mr. Michael Baksa's sir. Q. Can you describe -- what do you know about this document? What is it? A. To the best of my recollection this was some of the information Mr. Baksa had obtained in talking with in this case non-public schools in the York-Lancaster area, and he explained that he had only that morning received the name of the text being used by the Christian School of York, and that this had already been typed up and that's why he hand lettered the name of the book. Q. So these were results from the investigation or survey Mr. Baksa had offered to do back in June? A. Yes. Q. And each of the schools that are listed here, Christian School of York, Delone Catholic, and York Catholic, these are religious schools? A. Yes, sir. Delone Catholic is in Lancaster I believe. Q. By this time students had a textbook, right? Miller & Levine's Biology? A. I think we had already received them by then, yes, sir. We had approved them. Q. Certainly approved them. Why was this information Mr. Baksa was circulating here still relevant? A. I'm not really sure, sir. I found this by accident. Q. Do you know whether Mr. Baksa was still looking for a supplemental book for the biology curriculum? A. It is possible, sir, he was. Q. Could you turn to the next page of the document? A. Yes, sir. Q. And just to be clear here, there's four pages under Exhibit 660. A. Yes, sir. Q. And that group of four documents, were they handed out together by Mr. Baksa? A. Yes, sir. Q. And were they clipped or stapled in any way? A. They were stapled, sir. Q. And were these materials handed to everybody who was in attendance at that meeting? A. To the best of my knowledge they would have been. Q. And that included fellow board members, Ms. Harkins? A. Anyone present at that meeting. That was the usual practice, sir. Q. And the board members in attendance were Ms. Harkins, Mr. Buckingham, Mr. Bonsell, and yourself? A. To the best of my recollection. Q. Can you tell us what this second page in this document is? A. This second page is information related to a text for Christian schools. Q. And if you look at the second paragraph of the document, does it indicate what title of that book is? A. It is Biology for Christian Schools. Q. And the publisher of that book? A. Bob Jones University. Q. Was there discussion about this page of the document? A. I don't recall any discussion, but I was not there for the entire meeting, sir. The only discussion I recall was related to the first page and the books. Q. Could you turn to the third page of the document, which is depicted in a landscape format, and I'd just like you to take a look at the document, I realize the writing is small, and we will, maybe you could pull up the heading on the document. A. I can read the heading, sir. Q. And why don't you read the heading of that document into the record. A. "Views on the origin of the universe and life." Q. And this was in the materials Mr. Baksa handed out? A. That was the third page, sir. Q. Do you know who had created this document? A. No, I do not, sir. Q. Matt, could you pull up the next line? And this document seems to define various propositions, "Young earth creation, or creation science; progressive creation (old earth creation); evolutionary creation, (theistic evolution); deistic evolution ('theistic' evolution)," and I'm sure I'll mispronounce this, but "deistiological evolution (atheistic evolution)." Is that accurate? A. Yes, sir. Q. And I want to focus now on the first two columns in this document, which are young earth creation and progressive creation, and I just want to go over -- this document seems to identify certain aspects of each of these propositions? A. I believe it does, sir. Q. And if you could, Matt, we're going to be just looking at young earth creation and progressive earth creation, and Matt, if you could go to the second row where it says "Intelligent design in the world," and in the case of intelligent design of the world this document suggests that young earth creation and progressive creation are the same, they both point to a designer? A. Yes, sir. Q. Then we get to age of the universe, and in this case there is a difference. Young earth creation ten thousand years, progressive creation ten to fifteen billion years? A. Yes, sir. Q. Going on to evolution of life, here we're back in agreement again. Both reject macroevolution, but accept microevolution? A. Yes, sir. Q. God's activity in the origin of the world? A. Yes. Q. And both say direct, but in the case of young earth creation intervention over six days, progressive creation interventions over billions of years. Is that correct? A. Yes, sir. Q. And going on to origin of humanity, we're back in agreement here. Both young earth creation and progressive creation accepted Adam and Eve, accepts image of God, accepts sin? A. Yes, sir. Q. And do you understand those to be basically biblical references? A. Yes, sir. Q. And then going to the last row, which is examples of each, in the case of young earth creation the examples are Institution for Creation Research, Henry Morris, Duane Gish, answers in Genesis, and Ken Hamm, and the examples under progressive creation are the intelligent design movement, Phillip Johnson, Michael Behe, Hugh Ross, Bernard Ramm? A. Yes, sir. Q. And this is all contained in this document that the board members received? A. Yes. Q. And do you remember any discussion about this document? A. No, I do not, but as I stated I was not present for the whole meeting, sir. Q. Then there's a fourth document. If you could turn to that, Matt? And that's called "Beyond the Evolution Versus Creation Debate"? A. Yes, sir. Q. Again something that all the board members at that meeting received? A. To the best of my knowledge, sir, yes. Q. Sort of on the left-hand side of the page halfway down you see religion and philosophy? A. Yes, sir. Q. It says "Ultimate beliefs," and then for science, observations and experiments, theories and laws, correct? A. Yes, sir. Q. And board members got all of this? A. Yes, sir. Q. The board members at that meeting? A. When I found it, it was together. That was how we received it. THE COURT: If you're going to move on to a new topic -- MR. ROTHSCHILD: This would be a perfect time to break. THE COURT: Yes, why don't we take a break now. Let's try to hold it to fifteen minutes. I think we'll go to about 12:15 and we'll break for lunch at that time, just to give you a notice. We'll be in recess. (Recess taken at 11:04 a.m. Testimony resumed at 11:20 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 4 (September 29), AM Session, Part 2 THE COURT: Be seated, please. We continue with direct examination by Mr. Rothschild. DIRECT CONTINUED MR. ROTHSCHILD: Q. Thank you, Your Honor. Good morning again, Ms. Brown. A. Good morning. Q. Did there come a time when you learned that there was a proposal to modify the biology curriculum at Dover High School? A. The curriculum instructional guide, yes, sir. Q. And how did you find out about that? A. Initially from Mr. Baksa, sir, by a memo. Q. By a memo? Could you turn in your notebook and also look on the monitor, whatever is better for you, at Trial Exhibit P-73? If you could look at the first page, is this the memo that you're referring to? A. Yes, sir, it is. Q. And it says, "Attached is a recommended curriculum change for biology. The changes were reviewed by the science department," and did you receive that at or around September 20th, 2004? A. Yes, sir, I did. Q. And on the second page is a draft change to the curriculum guide? A. Yes. Q. Or a page of that? A. Yes, sir. Q. And on the page that is stamped Exhibit 29 it says at the bottom, and I'm going to read it to you, because I know I'm also going to ask Matt to blow it up, but it says, "Students will be made aware of gaps in Darwin's theory and of other theories of evolution." A. Yes, sir. Q. And is that the recommended curriculum change that you remember receiving from Mr. Baksa at this time? A. Yes, sir, it is. Q. And did you -- was this the first time you were aware that a curriculum change was being proposed? A. It was the first proposal I was aware of, yes. Q. Did you respond to Mr. Baksa? A. Yes, I did. I offered a couple of alternative wordings. Q. If you could turn to P-681, and that will appear on your monitor, were these the suggested changes in the wording of what Mr. Baksa had sent you that you proposed in return? A. Yes, it is. Q. Did you tell him anything when you gave this to him? A. We spoke very briefly, and I asked if the curriculum advisory committee was involved in the process, and he told me that Mr. Buckingham told him that it was not necessary to call a meeting of the curriculum advisory committee. Q. And that's the citizens committee? A. Yes, sir, it is. Q. And did you agree with that statement by Mr. Baksa, or what he was reporting Mr. Buckingham had said? A. I didn't agree with what he was reporting. I felt that the curriculum advisory committee as per our normal pattern should be part of it. They're an integral part of the whole process. Q. Did you receive subsequent to this exchange a memorandum indicating that there would be a meeting of the board curriculum committee to discuss the biology curriculum? A. Yes, sir, I did. Q. And Matt, could you turn to Exhibit P-75? And blow up the text, please. Is that the memorandum you remember receiving? A. Yes, sir, it is. Q. Did you attend that meeting? A. No, sir, I did not. Q. And why was that? A. I had an appointment with my ophthalmic surgeon, sir. Q. What was the next thing you found out about the biology curriculum? A. I learned that the teachers were not involved with the proposed changes. They were not part of the discussion. Q. And when you're referring to the discussion, are you referring to the meeting of the biology curriculum, of the curriculum -- A. Subsequent to that I know that Mr. Bonsell was there, and they came up with changes in wording beyond what had originally been proposed on the 20th I believe. Q. Did you receive any materials from Mr. Baksa with proposed curriculum changes? A. We did indeed as part of our board materials just prior, the Thursday prior to the meeting. Q. If you could turn in your notebook to Exhibit 84? And we have marked these exhibits as P-84-A, B, and C to correspond with how they were indicated as enclosures on the documents. You'll see the first is enclosure 11- A. If you could just look at P-84- A and P-84-B, were these materials you received on October 13th, 2004? A. To the best I can read they are. Q. Okay, and -- A. It's a little small. Q. And the first one says that it is, 84-A says that, "Attached are the recommended changes to biology curriculum from the board curriculum committee," is that right? A. Yes, sir. Q. And there's an attachment to that memorandum? A. Yes, there are attachments to those. Q. And I'm going to -- if we could go to the next page which has the attachment, and I'm going to read from the bottom section of that page. It says, "Students will be made aware of gaps, problems, in Darwin's theory and in other theories of evolution, including but not limited to intelligent design." Is that the change to the curriculum proposed by the board curriculum committee that you remember hearing about at or around October 13th, 2004? A. Yes, to the best of my recollection it is, sir. Q. And then if we could turn to 84-B, which also indicates enclosure B, it says, "Attached are the recommended changes to the biology curriculum from the administration and staff." A. Yes, sir. Q. And in that, in the bottom section of that there's an attachment to that memorandum? A. Yes, sir. Q. And in the bottom section of that, and again I'll read to make this a little easier, it says, "Students will be made aware of gaps in Darwin's theories and of other theories of evolution." A. Yes, sir. Q. And do you remember that as being the change to the biology curriculum that Mr. Baksa represented to be the recommended changes from administration and staff? A. Yes, sir. Q. Thank you. A. The difference, sir, in the main is the inclusion of under materials and resources under the previous, C, I'm not sure, the previous one is the inclusion of the reference to Of Pandas and People. Q. And is another difference that the board curriculum committee's recommendation included mention of intelligent design? A. Yes. Q. And the one represented to come from administration and staff did not? A. Correct. It used only the terms theories of evolution with a small "E," sir. Q. Was this the first time you became aware of the board curriculum committee's recommendation that intelligent design and the text Of Pandas and People become part of the curriculum? A. Yes, sir. Q. Was there a board meeting on October 18th, 2004? A. Yes, sir, there was. Q. Did the board vote on a change to the biology curriculum at that meeting? A. They voted on specific changes to the planned instruction curriculum guide, yes, sir. Q. For biology? A. For biology. Q. Had there been an earlier meeting in October? A. Yes, sir. Q. Was that the planning meeting? A. Yes, sir. Q. Was the subject of a curriculum change for the subject of biology discussed at that planning meeting? A. I don't recall the greater amount of the discussion, sir, but it was, there were many comments made. Q. Let me just be clear. At this, not at the October 18th meeting but at the earlier meeting in October, the planning meeting, was there any discussion about the changes to the biology curriculum to include intelligent design at that meeting? A. Not at that, not that part of it. There was ongoing discussion about the placement of Pandas and People in the classroom. My husband and I both had objected to the placement of it in the classroom. We felt it belonged in the reference section of the library. Q. Was an actual curriculum change part of the discussion at this planning meeting? A. Not that I recall, sir. Q. Was that a deviation from custom and practice for the board not to discuss something that would be voted on at a subsequent meeting like a curriculum change at this planning meeting? A. Sir, anything related to curriculum changes at this time of the school year was unusual. Q. What do you mean by that? A. There is a normal pattern related to curriculum specifically. We begin planning for changes to the curriculum the fall of the school year before. So in planning for changes for say the 2004/2005 school year we would begin meeting, discussing, researching in fall, the fall of 2003, and this was not the case. The normal procedures were not followed at all in making this change. Q. And one way is that it happened after the school year was already underway? A. Yes, and I had never experienced that during my entire tenure on the school board. Q. And just to be clear, when school was underway for something that was to be implemented that school year? A. That's correct, sir. Q. And was it also unusual, putting aside the year, for something like this, a curriculum change to be voted on, when it hadn't been discussed at the planning meeting? A. It was unheard of in my experience for all of the stakeholders not to be involved in any kind of change to our planned instructional curriculum guide. Q. Do you know if the curriculum advisory committee citizens committee was made aware of this change to the biology curriculum prior to the vote on October 18th? A. It is my understanding from Mr. Baksa that he did make telephone calls to a number, if not all, of the committee, the advisory committee members. I do not know how many people with whom he spoke. Q. Do you know whether the curriculum advisory committee had a meeting about this proposed change? A. No, they did not. Q. Do you know whether they provided any input at all prior to the vote about the proposed curriculum change? A. We received a sheet containing two or, I believe two comments that Mr. Baksa had prepared. They were comments that he had received from I believe telephone calls he made to advisory committee members. I do not know who. Q. Could you pull up Exhibit P-151, Matt? Is this the document that you received with comments from the curriculum advisory committee? A. It is, sir. Q. And do you remember when you received it? A. We received it just prior to the beginning of our board meeting on October 18th. Q. Do you know who created this document? A. To the best of my knowledge it was Mr. Baksa. Q. And do you understand this to be his recording of what was told to him over the phone? A. Yes. That is how he explained it to us. Q. The heading is "Dover area school district curriculum advisory committee comments, comments on proposed biology curriculum changes from curriculum advisory committee." And could you read the entry for number 1? A. "According to policy, curriculum advisory committee should review changes first before going to the board." Q. And did you feel like that had not been followed in this case? A. Most definitely it had not. Q. Could you read with, there's a second statement. A. "I disagree with the highlighted statement. Maybe we should meet as a curriculum committee." Q. Did you have any understanding of what highlighted statement was being referred to? A. To the best of my understanding it was the changes in the last sentence or two sentences in the biology curriculum guide. Q. So just to summarize, the way this curriculum change came to a vote was irregular in the fact that the curriculum advisory committee had not been involved in the normal fashion? A. Correct, sir. Q. It was unusual in the fact that it was voted on during a school year to be implemented in that school year? A. Yes, sir. Q. It was unusual in that the teachers were not involved in that process, at least in meeting with the curriculum committee to come up with the proposed language? A. To my understanding the final wording that came from the board curriculum committee, the teachers have no part at all in that. They only learned of it the morning of October 18th. The meeting would have been that night. They met hastily and made their own comments, but they were not involved in preparing any of it, no, sir. Q. And it was also unusual in that it had not been the topic of discussion at the planning meeting, the meeting before the vote? A. That is correct, sir. Q. At the board meeting on October 18th did you bring these procedural problems to the attention of the board? A. Not in so many words, sir. We tried to amend what was being proposed. The minutes of the meeting do reflect that I think there were something like eighteen amendments proposed. The only change that was finally added was the teachers' note concerning, "Origins of life will not be taught." Q. And I will ask you about that aspect of the event in a moment, but did anybody communicate in the board meeting or among board members separately can we slow down here, we haven't done this right? A. My husband was very forthcoming in suggesting that we table this. We voted on tabling it. That was defeated. There were a variety of tabling motions that were defeated. Mr. Renwick was our parliamentarian extraordinaire, and he offered many of those proposed amendments. Q. But that was not successful? A. No, sir. None of them were. Q. If you could turn in the binder, and we'll also pull this up on the screen under Exhibit 84, we have 84-C, and it says Enclosure C, and it's dated October 18th. It says, "Attached is a second draft of the recommended change to the biology curriculum from the administration and staff." Is this something that you received as a member of the school board? A. Yes. We received it the night of the meeting, sir. Q. Okay, and there's an attachment to that document? A. Yes, there is. Q. Another draft curriculum guide? A. Yes, sir. Q. Okay, and if you could turn to that page? And this is virtually impossible to read, but it says, "Students will be made aware gaps, problems, in Darwin's theory and other theories of evolution. Notice, the origin of life is not taught," and here it does indicate the reference to Pandas and People. Do you remember that as the document, the attachment to the document you received on October 18th? Is that the language you remember? A. Yes, sir. Q. This document uses the expression "origins of life," and you brought it up in your testimony. When you use that term in the context of the biology curriculum and the teaching of evolution, what's your understanding of what that means? A. How life began. Not simply on the earth, but in all of the universe that we know. From my own faith I believe in God the creator. Q. I just want to -- I want to get your understanding of what the term meant as it was being used in the discussion of the biology curriculum. So your understanding as it pertained to this issue. A. What the teachers did was to take custom and wanted to make it part of policy. Heretofore when students asked, as I testified earlier, when students ask about the origins of life, the teachers' custom was to refer them to discussion with their parents, to their pastors, their home churches. This had been custom, not written, and I believe from talking with some of the teachers later on that what they were trying to do was to keep this just this side of the line legally by making it written policy. You don't get into trouble with custom. It's when you get into written policy that you can get into trouble. Q. Did you understand the term as it was being used in these discussions to include for example the origin of species, including the human species? A. Yes, you could interpret it that way, sir. Q. Did you interpret it that way? A. When I say all of life I mean all of life, from the smallest single cell to the greatest galaxy, sir. That's my understanding. Q. Did you have any conversations with other board members about this specific language, what it means? A. There had been conversations through a couple of years discussing faith versus science, sir. Q. Ultimately there was a vote on the change to the biology curriculum? A. Yes, sir, there was a vote. Q. And I'm going to ask you -- actually let me back up for a second. You said, testified earlier when we were talking about the June meeting that one of the things you advocate is that the concepts that they were talking about like creationism should be taught in for example a comparative religions class. A. Yes, sir, I did. Q. Rather than science. A. Yes, sir. Q. Did you renew that advocacy subsequently? A. Yes, sir, I did. Q. Did you do that -- A. At just about every meeting. Q. Did you do that at the October 18th meeting? A. Yes, I did, sir. Q. Was that, when you said that, were you saying that intelligence design should be taught in that arena rather than science class? A. Biology is a physical science. It is based on teaching our students about the physical senses, the world around them. Intelligent design, like any other hypothesis, is a matter of faith to me, and it does not belong in science class. It belongs in, I believe the term would be a softer class, a softer discipline, such as comparative world religions, world philosophy, ancient philosophy, but that type of subject. Q. And you made that point at the October 18th meeting? A. Yes, I did, sir. Q. There was a vote? A. Yes, sir, there was. Q. I understand there were a lot of amendments before a vote on what finally was passed occurred, but I'd like to focus on what was actually voted into the curriculum. If you can turn to Exhibit 209, Plaintiff's Exhibit 209? And this document is really the entire biology course curriculum guide, and you can look in your notebook if you want to flip through it. A. Yes, sir. Q. On page P-1646, and those are page numbers that the plaintiffs have affixed to these documents during the course of this litigation, there's a section that reads -- and do you need a minute to flip through? It will also be on the screen, but take your time. (Brief pause.) A. Yes, sir. Q. And at the top of the guide where it talks about unit, content, concepts, process, the chapters listed include 10, Natural Selection; 11, the Mechanism of Evolution; and 12, the Origin of Biodiversity. A. Yes, sir. Q. And going all the way to the bottom of the page, under the unit, content, concepts, process -- just we need the bottom section there, Matt. Do you recognize this, and actually, Matt, if you could pull in the note at the bottom as well? A. Yes, sir, I do. Q. And is this what was actually voted in on October 18th? A. That was approved on October 18th. Q. That says, "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution, including but not limited to intelligent design." Then it has a note below it, "The origin of life is not taught." A. Yes, sir. Q. And it includes the instructional strategy lecture? A. Yes, sir. Q. And under materials and resources the reference Of Pandas and People? A. Yes, it does, sir. Q. And what I just read to at the bottom of the page there, that is what the board voted into effect on October 18th? A. The final vote was for this. Q. Who were the board members who voted for that change? A. Mr. Alan Bonsell, Mr. William Buckingham, Mrs. Jean Cleaver, Mrs. Heather Gessey, Mrs. Sheila Harkins, Mrs. Angie Ziegler-Yeungling. Q. And who voted against the change to the curriculum? A. Mr. Noel Renwick, Mr. Jeffrey Allen Brown, and myself. Q. After this vote, what happened? What did you do? A. At the end of the meeting, sir, when we opened for final public comment I requested recognition from the chair from president Bonsell, and I resigned. Q. At the meeting did you explain why you resigned? A. Yes, sir, I did. Q. Do you remember what you said? A. Not verbatim, sir. Q. Did you read from a prepared text? A. Yes, I did, sir. Q. Matt, could you pull up Exhibit 688? Is this the first page of your resignation speech on October 18th, 2004? A. It is, sir. Q. I'm going to ask, Matt, could you turn to page 2 of the document? And this is what you read to everybody in attendance, "Fellow board members and the community"? A. Yes, it is, sir. Q. I'd like you to, starting at the second to last paragraph, to read what you said to the board and the community when you resigned. It's in your book as well on Exhibit 688. A. I can read it. "We as board members serve as the representatives of our community to our district. We are responsible for making policy, for seeing that the district is in compliance with and remains in compliance with all applicable state and federal guidelines mandates and laws. We are here as representatives of all of the members of our community and to represent all viewpoints of our community, and we cannot favor one segment or one viewpoint over another." Q. Could you continue reading, please? A. "Sometimes in order to fulfill the requirements of our office we must put aside our personal feelings and beliefs. It is not always an easy thing to do, but it is what we must do in order to properly perform the duties and responsibilities of our office. In the past year regretfully there seems to have been a shift in the attitudes and direction of this board. "There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all. A measure of that is the fact that I myself have been twice asked within the past year if I was 'born again.' no one has, nor should have the right, to ask that of a fellow board member. An individual's religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a person's beliefs be used as a yardstick to measure the value of that service. "However, it has become increasingly evident that in the direction the board has now chosen to go, holding a certain religious belief is of paramount importance. Because of this, it is quite clear that I can no longer effectively function as a member of this board, that I can no longer properly represent the members of this community, and I apologize to them for this failure. "Accordingly, effective immediately, and with deepest regret, I am stepping down from the Dover school board, as well as from the board and authority of the York County School of Technology. I shall pray for you all, pray that you will find the wisdom to separate your personal beliefs and desires from the proper fulfillment within the law of the duties and responsibilities of your office. I shall pray that you will learn to represent all of the members of our community and all of their viewpoints with impartiality and with grace." Q. Thank you, Ms. Brown. Does the speech that you read reflect your view about how the change in the biology curriculum came about? A. Yes, it does. Q. Does it reflect your views about the general environment on the board at this time period? A. With deepest regret I must say that it does. Q. After this vote had occurred did any members of the board say anything to impugn your religious beliefs or religious faith? A. Yes, sir. Q. How many board members do you recall doing that? A. Two board members, sir. Q. Who were they? A. One was William Buckingham. Q. Who was the other one? A. Mr. Alan Bonsell. Q. What did Mr. Buckingham say to you? A. He decried my beliefs, called me an atheist. Q. When did that happen? A. That was just after my stepping down from the board. Q. When did Mr. Bonsell say something to you that you that you felt impugned your religious faith or your religious beliefs? A. It was later on, a couple of months later, sir. Q. And what was the setting when this occurred? A. It was during a recess during a regular board meeting. Q. What did he say to you? A. He accused me and my husband of destroying the board, and he impugned my faith. Q. What did he say? A. He told me I would be going to hell. MR. ROTHSCHILD: I have no further questions, Your Honor. THE COURT: All right, thank you, Mr. Rothschild. Cross examination by Mr. Gillen? MR. GILLEN: Judge, just if you want to go on until 12:15 that's fine, but I might take a good bit of time -- THE COURT: Well, you think you will? MR. GILLEN: Yes. THE COURT: All right. Well, then it's probably an appropriate place to stop rather than interrupt you at mid cross examination. So contrary to what I said why don't we take our lunch break now, even though we've had a rather abbreviated session. So we'll break, why don't we break until let's say 1:15. I think that should give us plenty of time, and we'll reconvene -- actually let's say, there's some matters I must attend to. Let's say 1:30, and we'll reconvene at 1:30. MR. GILLEN: Thank you Your Honor. (End of Volume 1 at 11:53 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 4 (September 29), PM Session, Part 1 THE COURT: All right. Now, Mr. Gillen, cross-examine. MR. GILLEN: Thank you, Your Honor. CROSS EXAMINATION BY MR. GILLEN: Q. Good afternoon, Ms. Brown. A. Good afternoon, Mr. Gillen. Q. Pat Gillen for the Defendants. A. I remember, sir. Q. Thank you very much. I'm going to ask you a few questions about your testimony here in court today. Towards the closing portion of your testimony, you testified that two members of the board had asked you if you were born again, is that correct? A. Actually, there were three, but two within the past -- the last year I served on the board. Q. Who were they? A. The two who asked me within the last year of my tenure? Mr. William Buckingham and Mrs. Jane Cleaver. Q. And those are the two you referenced in your departing speech from the board, correct? A. Yes, they were. Q. I want to ask you a few questions about that. You testified today that the people on the board were your friends, correct? A. They had been my friends. Q. Okay. Now the conversation with Jane Cleaver, isn't it true that, that took place in her home? A. Yes, it did, sir. Q. And you had come over to her house to speak with her because she was a new board member, correct? A. Yes. Q. You invited the conversation, didn't you, Mrs. Brown? A. I most certainly did. I so indicated in my deposition, sir. Q. That's right, that's right. And I want to place that statement in context today. In fact, you went to her home, and you saw a beautiful carving of the Lord's Supper, correct? A. The Lord's Last Supper, yes, sir. Q. You began to talk to Mrs. Cleaver about religion, didn't you? A. No, I did not speak to her directly about religion. What I spoke to her about was my liking for the carving. I had never seen such a beautiful carving. And I did make reference to the fact it was of the Lord's Last Supper. And the conversation segued from there. Q. You concede that conversation about the art is not about a religious object? A. It most certainly is within that context. Q. Okay. And it was in that context that Mrs. Cleaver discussed her religious convictions, correct? A. Yes, it began with her discussion of a trip, I believe, that she and her late husband had made to the Holy Land, sir. Q. And it was during that discussion of her religious convictions that she asked you? A. Yes, she did, sir. Q. So your friend asked you about your religious convictions in her home, correct? A. Yes, she did, sir. Q. And that conversation was not for business, correct? A. Yes, it was, in one sense, sir. MR. GILLEN: Well, Your Honor, may I approach the witness? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Mrs. Brown, I'm giving you a copy of your deposition. A. Oh, thank you. I can read it. Thank you. Q. Yeah, I have the full pages, and I truly regret any inconvenience. A. That's all right. Q. If I could have, I would have adjusted -- A. What did you wish me to look at, sir? Q. I would ask you to look at page 67 of your deposition testimony, Mrs. Brown. A. What portion of the page, sir? Q. I would ask you to begin looking at the page on line 13. I will read the question that I asked you during your deposition. Let me see, if you have this discussion with Mrs. Cleaver, and you say, it was kind of a -- just an exchange between the two of you? Would you read your answer, Mrs. Brown? A. I said, beyond the school board business, yes. Q. So the discussion was beyond the school board business, correct, Mrs. Brown? A. Yes, but it was within the framework of school board business that I was at her home, sir. Q. But you told me that it was beyond the school board business, correct? A. It was beyond the scope of what I was there for, yes, sir. Q. Okay. Now you've also testified that Mr. Buckingham once asked you if you were born again, correct? A. Yes, sir. Q. I'd like to place that comment in context as well. Now you said Mr. Buckingham was your friend today in court, is that correct? A. That is correct, sir. Q. I would ask you to turn to page 86 of your deposition, Mrs. Brown. And if you would, just -- don't worry. If you would, just take a moment and look over from pages 86 through 88. A. Yes, we were referencing a policy committee meeting. Q. Now if I'm not mistaken, Mrs. Brown, in your deposition, you testified that you did have a discussion with Mr. Buckingham on one occasion where he was kind enough to offer you a ride home from the school board meeting, correct? A. From the policy committee meeting. He was a member of the policy committee, sir. Q. Okay. And while he's giving you a ride home, he did ask you about your religious convictions, correct? A. Yes, he did. Q. And that is the occasion in which Mr. Buckingham asked you if you had been born again, correct? A. Yes, that is correct. Q. So Mr. Buckingham, who you've testified is your friend, is kind enough to drive you home from a board meeting. You're having some discussions about the current state of culture and morality? A. Yes, sir. Q. And he asked you about your religious convictions, correct, Mrs. Brown? A. That is correct, sir. Q. So on the day that you resigned from the board, and you read your speech, and you said two people asked you if you were born again? A. Yes. Q. And you thought that was inappropriate, correct? A. Yes, I did, and I still do, sir. Q. You think it's inappropriate for a friend to ask you about your religion? A. Yes, I do. Q. Okay. You don't ask anyone about religion? A. No, I do not, sir. Q. Is religion something that shouldn't be discussed at all? A. I would not presume to discuss religion under normal circumstances except within my own family, sir. Q. Did you ever tell Mrs. Cleaver that you were offended? A. No, I did not, sir. Q. Did you ever tell Mr. Buckingham that you were offended by his question to you while he was taking you home? A. I did say to him, I don't think we should be discussing this. But, no, sir, I did not tell him I was offended. Q. Mrs. Brown, I believe you testified that you came on the board, and you were elected president, correct? A. That was during my third term, yes -- beginning. Q. I'm sorry. Go ahead. A. It was at the beginning of my third term, yes, sir. Q. Okay. Now I believe you said, subsequently, Mr. Bonsell became president, correct? A. Yes, two years later, sir. Q. Then you were nominated for vice president, correct? A. Yes, I was. Q. But you were not elected? A. No, I was not. Q. Isn't it true, Mrs. Brown, that from that day forward, you didn't get along with the board? A. No, it is not true, sir. Q. Isn't it true that from that day forward, you had recriminations for your fellow board members? A. No, sir, that is not true. Were that the case, sir, I would have resigned immediately after that election. Q. Let's talk about your participation in the board, please. I believe that you said that you ran for the board, along with some of these people who are currently on it; Mr. Bonsell, correct? A. Yes, sir. Q. All right. You ran for the board with him, correct? A. That is true, sir. Q. And your platform was one of fiscal responsibility, correct? A. Fiscal responsibility, academic accountability, among other things, sir. Q. You had also worked with his father, Don Bonsell, correct? A. Yes, I did, sir. Q. Both of you and Don Bonsell shared a concern for fiscal responsibility while you shared terms on the school board, correct? A. Yes, sir. Q. Later you ran with Sheila Harkins, correct? A. Yes. But I must correct, you sir. I did not run with Mr. Bonsell, Sr. Q. No, no, correct. I didn't mean to create that impression. You ran with Alan Bonsell, correct? A. Yes, sir. Q. And Sheila Harkins? A. And Angie Zeigler Yingling, sir. Q. So that's a yes to Sheila Harkins? A. Yes, sir. Q. You didn't run on a religious platform, did you? A. Most certainly not, sir. Q. Now when you were first elected president of the board, it was a contentious proceeding, wasn't it? A. Yes, it was. Q. In fact, Barrie Callahan and two other board members stepped out, isn't that true? A. That is true. Q. They refused to come in until you had been selected president? A. Very true. Q. And some of the people who selected you president were Alan Bonsell, Sheila Harkins, and Angie Yingling, correct? A. Yes, sir. Q. You've referenced a contentious board meeting that had to do with the pledge of allegiance, correct? A. Yes, sir. Q. And during that -- the issue in that meeting was whether or not the board should pass a resolution in favor of keeping under God in the pledge, correct? A. To pass a resolution to send a letter of support to the Supreme Court. Q. Support for what? A. To keep under God in the pledge of allegiance, sir. Q. Thank you, Mrs. Brown. And you read an address at that meeting, didn't you? A. I did, sir. Q. And that address mentioned the founding fathers, correct? A. It did, sir. Q. Is there anything wrong with Mr. Bonsell's references to the founding fathers? A. No, sir. Q. You voted in favor of the resolution keeping under God, supporting keeping under God in the pledge? A. Yes, I did. As I stated in my deposition with you, it is one of two votes that I deeply regret. Q. Let's look at the biology text issue here. The text was not purchased in 2003, correct? A. No, sir, it was not. Q. And that was because of fiscal concerns, correct? A. Yes, it was. Q. In fact, there was discussions that the teachers weren't using the book that they had at present? A. Yes. It did not match the academic standards put forth in Chapter 4 from the State Department of Education, sir. Q. So there was a discussion that the teachers weren't using the book that they presently had, correct? A. Yes, because it did not fit the new science standards, sir. Q. They weren't using it, Mrs. Brown? A. That's correct, sir. Q. Barrie Callahan wanted to buy the books? A. Yes, she did. Q. You saw that Barrie Callahan is pretty much a spender, didn't you? A. Yes, more so than I was, sir. Q. And that was her general attitude toward school board budget matters, correct? A. Yes, sir. Q. So you differed with Mrs. Callahan on that issue? A. Yes, I did. Q. In 2003, Mrs. Callahan was joined by other board members, Larry Snook and Lonnie Langione, in criticizing the board, correct? A. Yes. Q. You believed that they were politically motivated, correct? A. At one point in time, I did, sir. Q. In fact, you've testified that you say, when the three of them came up to the podium, you shut your ears? A. Very often, I did, sir. Q. You've testified to meetings with the teachers about the selection of the text, correct? A. Yes, sir. Q. At those meetings, other texts, including consumer sciences, were also at issue? A. Yes, sir, I believe there were three texts. Q. And Bill Buckingham has head of the curriculum committee in 2004 when these discussions took place? A. Yes, he was, sir. Q. Now Mr. Buckingham was in a new position because he hadn't been on the board curriculum committee before, sir? A. He had been appointed to the board, sir. Q. Board curriculum committee? A. He had been appointed to the board itself prior to running for election, sir. Q. I didn't ask you about that, Mrs. Brown. I just asked you -- A. I misunderstood, sir. Q. Okay. Then forgive me if my question was imprecise. I asked you if this was the first time Mr. Buckingham had served on the curriculum committee, correct? A. In 2003, yes, sir. Q. In 2004, he was the head of the committee? A. Yes. Q. He was in a new position? A. Yes, sir. And I believe my answer was imprecise. The end of 2003 or the very beginning of 2004 when the president made the committee selections. My apologies. Q. I appreciate that accuracy. And he said at that meeting, he didn't have a chance to review the text? A. To which meeting are you referring, sir? Q. The meeting of the board curriculum committee on -- in June of 2004? A. I believe it was prior to that, sir. I may be incorrect. But he did indicate his unfamiliarity with the text. Q. And this is the meeting at which the teachers gave their recommendation of the Miller Levine text? A. Are we referring to a board meeting, sir, or a curriculum meeting? Q. The board curriculum committee meeting and the teachers are discussing the pros and cons of the Miller and Levine text. Do you recall that discussion? A. Among others, yes. Q. Now when Mr. Buckingham said that, there was subsequently a board meeting in June, the first meeting in June? A. Yes, sir. Q. And Mr. Buckingham indicated that he couldn't bring the book up to a vote because he hadn't had a chance to review it? A. Yes, sir. Q. And Barrie Callahan was in the public comment section or the seating for the public? A. Yes, sir. Q. And she voiced objections, correct? A. She brought it up at the public comment section at the beginning of the meeting, sir. Q. So did Larry Snook, correct? A. Yes, sir. Q. Now you've testified about a meeting in which Mr. Buckingham made a, what should I say, as you testify, an unkind comment to your husband, correct? A. Yes. Q. And you've said at that point, you felt like hitting him, didn't you? A. Yes, I did. I said that in my deposition. Q. And during these discussions in June, it was evident to you that Mr. Bonsell was interested in intelligent design, correct? A. That was not the term that was used, sir. Q. Mrs. Callahan, I ask you to look at your deposition. A. I beg your pardon? Q. If you look at your deposition, on page 144 -- THE COURT: I think you have the wrong name. I beg your pardon. MR. GILLEN: Forgive me, Mrs. Brown. 144. Thanks, Judge. THE COURT: You've been so polite to each other, I thought I'd help things along. MR. GILLEN: It's been a long week. It's been a long week, and it's only Thursday, Judge. THE COURT: Right. THE WITNESS: Which portion of the page, sir? BY MR. GILLEN: Q. I want to make sure I give you enough to look at so you've got some context. If you look at 143, and take a quick look over that, you'll see it's in reference to the June meeting? A. I'm sorry. I thought you said 144. Q. I did, but upon reflection, if you would start at 143, it will give you the date I'm talking about, that's June 2004? A. Yes, sir. Q. And if you would read over onto page 144. I direct your attention to line 6? A. On which page, sir? Q. 144. A. My response to Mr. Bonsell's reference point? Q. Yes. A. Yes, sir. Q. The question I asked you at that time was, Do you remember Mr. Bonsell saying anything at these June 2004 meetings? If you would, Mrs. Brown, if you'd read your answer beginning on page 6 -- or line 6 at page 144? A. Mr. Bonsell's reference point, I believe, was intelligent design. I may be in error. I believe from what I heard that Mr. Bonsell favored giving the two viewpoints of intelligent design and, as they termed it, Darwinism. Do you wish me to continue, sir? Q. No, thank you. Now after that, there was another meeting between the board curriculum committee and the teachers, correct? A. Yes, sir. Q. And at that time, the teachers expressed that they taught evolution, as you said this morning, with a small e? A. Yes, sir. Q. And you understood that to mean, teachers focused on adaptations more of the animal and plant world, correct? A. Yes, sir, Darwin's theory of natural selection, sir. Q. And they told Bill that in 20 odd years of experience, they had perhaps half a dozen questions about origins? A. That is correct, sir. Q. And all the teachers were very clear that they did not teach the origin of life? A. Yes, sir. Q. Teachers said it was their custom to tell students who asked questions about that to talk to their parents, their family, their pastors, correct? A. That is correct, sir. Q. Bert Spahr indicated at that meeting, as you have today, that the text didn't jive with state standards, correct? A. The text we had at that time, sir. Yes, sir. Q. Now at the conclusion of this meeting, Mr. Buckingham indicated that he could deal with that, correct? A. Yes, he did. Q. And you believed that the text would be purchased, correct? A. I did indeed, sir. Q. And the text was purchased, Mrs. Brown, correct? A. Eventually, sir, it was. Q. Around this time, you heard of a supplemental text that was under consideration, Of Pandas and People, correct? A. Approximately one month later, sir. Q. That would be July? A. The latter part of July, sir. Q. That's your recollection? A. To the best of my recollection. Q. And it was your understanding that Mr. Buckingham wanted the text Of Pandas used side-by-side with the biology text recommended by the teachers, correct? A. Yes, it was. Q. And when you heard of Of Pandas, you picked up a copy -- let me ask you this. Mike Baksa called you and told you that Of Pandas was being discussed among the board curriculum committee, correct? A. I believe that's correct. Q. And you went down and picked up a copy and took a look at it, correct? A. No, I did not. My husband picked up a copy from Mrs. Harkins. Q. Oh, okay. Good enough. So you got a copy, and you and your husband looked it over, correct? A. We read it. Q. And as you noted, it didn't contain any reference to God, correct? A. No, it did not, sir. Q. Or creationism? A. No, sir, it did not. Q. Or a literal interpretation of the Bible? A. No, sir, it did not. Q. But you did see it as giving a supernatural explanation, correct? A. Yes, I did, sir. Q. Now the next meeting was in August 2004, correct? A. Yes, sir. Q. And you testified today that, in your opinion, the text that were flashed up here on the screen was being considered for purchase, is that correct? A. I'm sorry, sir. I don't understand. Q. Well -- and I'm trying to understand your testimony today here, Mrs. Brown. Documents were flashed on the screen with your handwritten notation, August 27th, 2004? A. Yes, sir. Q. And those related to biology texts, correct? A. There was a reference to one text on the second page, sir. Q. Well, how about that first page? Wasn't that a list of three base texts that were used at private schools? A. Non-public schools, according to that. Q. So you had the first page with three texts listed, correct? A. Yes, sir. Q. And then, as you've noted, there was a second page with another text? A. Yes, sir. Q. Is it your testimony that people were considering purchasing another textbook on August 27th, 2004? A. No, sir, it is not my testimony. Q. So what was discussed? A. To the best of my recollection, as I said, sir, I found that material by accident, and I turned it over immediately. I didn't even know it still existed. In trying to place it in context, looking back on my calendar, I have a curriculum committee meeting list for that date, which is the date at the top of the material. It was clipped -- it was stapled together. I remember a discussion of the text listed on the front page. Mr. Baksa gave us the information. These were samples of texts that were in use in neighboring districts or non-public schools, to the best of my recollection. I was not there for the whole meeting. I do not remember any discussion of the subsequent pages. It may well have occurred when I was not at the meeting. But I do not remember a discussion of that material, sir. Q. Okay. And I want to be fair to you, but I want to be clear as well. The text that was recommended by the science faculty was purchased on August 2nd, 2004, correct? A. In the ballpark. It was approved. Q. Okay. And I won't hold you to the dates. But in early August, the text was purchased? A. Yes. Q. Okay. Now what I want to be clear on is the date on that piece of paper, Mrs. Brown. The date that was on that piece of paper that was flashed on the screen was August 27th, 2004? A. Yes, sir. Q. Those documents relate to textbooks, and my question to you is, is it your testimony -- MR. ROTHSCHILD: Objection, Your Honor. It mischaracterizes the evidence. MR. GILLEN: You want to flash them up on the screen? MR. ROTHSCHILD: If he is referring to all of the documents, that's not an accurate characterization of the evidence. MR. GILLEN: Forgive me if I was imprecise. THE COURT: I'll sustain the objection to the extent that it might have been too broad. Why don't you rephrase? MR. ROTHSCHILD: Thank you, Your Honor. MR. GILLEN: Sure. BY MR. GILLEN: Q. Mrs. Brown, forgive me if I was unclear. We're talking about the first two documents that was flashed up. The first one had the date of August 27th, 2004, on it and referenced three textbooks that were being used in private schools? A. Yes, sir. Q. You remember that document? A. Yes. Q. And the second was another text? A. Yes. Q. Is it your testimony here today that those texts were discussed at the August 27th, 2004, meeting? A. I have tried to be clear. To the best of my knowledge, that was the day, and I extrapolated that, very honestly, based on the dated material, which I always date, and the fact that I had a curriculum committee meeting listed for that day. I believe it was a curriculum -- the curriculum committee meeting where I left early. I was unable to stay. So the only recollection I have of that material is receiving it from Mr. Baksa and a discussion related to the textbooks he had found in use. I have no memory, no recollection, sir, of the subsequent pages of the document. I only know that they were stapled together in my file. Q. So you don't know if those texts were discussed on August 27th, 2004, correct? MR. ROTHSCHILD: Objection, Your Honor. He mischaracterized the testimony. THE COURT: No, I'll overrule the objection. That's appropriate cross. You can answer the question. THE WITNESS: Would you repeat it, sir? MR. GILLEN: Certainly. BY MR. GILLEN: Q. You don't know if those texts were discussed on August 27th, 2004, correct? A. To the best of my recollection, I believe they were. Q. Based on what? A. Based on knowing who was using them, remembering the explanation that Mr. Baksa gave for the handwritten portion, the title Modern Biology from the Christian School of York, based on the fact that I had dated it August 27th, and when I checked my calendar to try and frame the reference, sir, I found a notation that stated there was a curriculum committee meeting. As I have stated, sir, there were two curriculum committee meetings where I was only present for part of the meeting, and I believe that was one of the two. That is to the best of my recollection. I have no recollection of discussion relating to the second, third, or fourth pages, sir. Q. Did you discuss at the meeting the texts that were listed on the first two pages? A. Only -- my recollection is that Mr. Baksa made a report simply telling us what was being used. I believe the texts he referenced were also in use by some other schools. That is the best of my recollection. I may be in error, sir. Q. Okay. Good enough. You learned about a possible change in the biology curriculum in September 2004, correct? A. Yes, sir. Q. And Mike Baksa gave you some potential language, correct? A. Yes, some proposed language. Q. And you didn't like the language that was proposed, correct? A. That is correct, sir. Q. And you suggested changes, correct? A. I made suggestions, yes. Q. And as we saw today, the language you suggested referenced gaps in Darwin's theory, correct? A. Yes, I did. Q. And it referenced a variety of explanations for the origins of life, right? A. Yes, it did, sir. Q. Now on the night of the October 18th, 2004, meeting, the board voted on the proposed curriculum change, correct? A. Yes, it did, sir. Q. And Angie Yingling voted for the change, didn't she? A. Yes, she did. Q. She later told you that she was afraid that her business and personal life would be affected if she didn't? A. Yes, sir, she did. Q. You think or you've offered your opinion that board members were voting on the curriculum change for religious reasons, correct? A. That is my opinion, sir. Q. Now you know that Noel Weinrich has been someone who's expressed support for creationism, correct? A. That is correct, sir. Q. And Sheila Harkins has made it clear that she believes in evolutionary theory as a scientific theory, correct? A. That is correct, sir. Q. Now Noel voted against the curriculum change, correct? A. Yes, he did. Q. And Sheila voted for it, correct? A. Yes, sir. Q. So aren't you just speculating? A. No, sir. Q. Why not? A. Mr. Weinrich told me why he voted against it, sir. Q. Did he tell you he was voting against it for religious reasons? A. He voted against it on principle. Did you wish an explanation, sir? Q. No. I just find it odd that you think you know why people voted on that night? A. Sir, I have never claimed to know why Mrs. Harkins voted the way she did. I only know Mr. Weinrich told me personally why he chose to vote the way that he did. I cannot give you a reason why Mrs. Harkins voted the way she did. Q. I'm sorry. Continue. A. I'm finished, sir. Q. Okay. Mr. Weinrich told you on more than one occasion that he believes in creationism, correct? A. Yes, sir. Q. And he voted against the curriculum change, correct? A. Yes, he did, sir. Q. Mrs. Brown, I'm going to ask you to take another look at the chart that you were shown today that you turned over reasonably, and I thank you for that, which, along with that packet of documents that's referenced August 27th. And in consideration for your eyesight, the Plaintiffs have kindly agreed to project that chart again. A. Yes, sir. Q. Do you recall seeing this document on or about the curriculum meeting that you seem to recall toward the late summer of 2004? A. Sir, I have told you. The only recollection I have is of the packet of the information, in the first page of that packet, I remember discussion of that. I do not recall any discussion on the second page, the third page, I believe this is the third page, and the fourth page. I only remember discussion on the first page itself. When I found it, I didn't recall anything at all and I still do not, sir. Q. Okay. Let me see if I can jog your memory. If I can't, I'll stop here. If you would direct your attention to the one, two, three, fourth column over and the second down. If you'd look at that. Do you remember any discussion of people saying that Darwin believed in a designer? A. No, I don't, sir. Q. All right. Let me just ask you to look down at the last part, in case it may prompt your recollection. Do you recall anyone talking about Darwin and intelligent design as being different theories of evolution? A. As relates to this particular page, no, I do not, sir. Q. How about generally? Do you recall people discussing intelligent design as another theory of evolution? A. Another theory of evolution? Q. Do you recall any discussion along those lines? A. Not as another theory of evolution, sir. Q. Today you referenced that Mr. Bonsell had expressed an interest in prayer in the schools and the Bible, correct? A. Yes, sir. Q. Was there ever any policy put in place requiring prayer in the schools? A. No, sir, there was not. Q. Was there any policy put in place requiring Bible readings in the schools? A. No, sir, there was not. Q. You testified that you spoke about the founding fathers, correct? A. Yes, I did, sir. Q. And, in fact, you referenced the Treaty of Tripoli, signed by President John Adams, when you discussed the pledge, correct? A. Yes, sir, November 10th, 2003. Q. When you left the board, Mrs. Brown, you indicated that you would pray for everyone? A. Yes, I did, sir. Q. Did you regard that as an inappropriate expression of religious conviction at a public school board meeting? A. Given the tenor of what had happened, no, sir, I did not. Q. Today you testified that Bill Buckingham said you were an atheist? A. Yes, sir. Q. Mrs. Brown, I took your deposition on May 16th, 2005? A. Yes, sir. Q. And I wanted to get your side of the story. You were under oath when I took your deposition, correct? A. Yes, sir. Q. And I asked you about comments directed to your religious convictions? A. Yes, sir. Q. As we know, you told us about your conversation with Jane Cleaver in her home, right? A. Yes, sir. Q. You told me how Bill Buckingham asked you a question after he was kind enough to give you a ride home? A. That is correct, sir. Q. Today you reference a comment that you attribute to Mr. Bonsell, right? A. Correct, sir. Q. Mrs. Brown, you never told me on May 16th, 2005, that Bill Buckingham called you an atheist. MR. ROTHSCHILD: Objection, Your Honor. What question is he referring to in the deposition? It depends how the question was asked. THE COURT: Are you trying to impeach her? MR. GILLEN: Yes, sir. THE COURT: Well, that's not the right way to do it, so you're going to have to go to the deposition and do it that way. MR. GILLEN: That's fine. THE COURT: The objection is sustained. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Mrs. Brown, I direct your attention to page 216 of your deposition. A. Could you give me a line, sir? Q. Sure. Start looking at page 216, line 6, and you'll see we're referencing your speech. And there you mentioned the comments, if you look at 216 and 217, you'll see that you told me there about the comments you attributed to Mrs. Cleaver and Mr. Buckingham, correct? A. Yes, sir. Q. And you'll see there's -- if you'll turn then to page 220, line 22. And the question on line 22 is, Apart from this comment which you've mentioned, were there any other comments? You asked me, By this individual? And I asked you, Well, from board members directed to your religious beliefs? A. And I answered, yes. Q. Right. And then I asked you, You have mentioned two; one by Mr. Buckingham and one by Mrs. Cleaver. Besides those, any additional ones? And you said, One in the hallway. And that's what you testified today about Mr. Bonsell, correct? A. Yes, sir. Q. That's all you told me, Mrs. Brown, is that correct? A. That is correct, sir. MR. GILLEN: I have no further questions, Your Honor. THE COURT: All right. Mr. Rothschild, any redirect? REDIRECT EXAMINATION BY MR. ROTHSCHILD: Q. Hello again, Mrs. Brown. Did Mr. Weinrich explain to you why he voted against the curriculum change that was voted in on October 18th? A. Yes, he did, sir. Q. And what did he tell you? What did he tell you about his views? A. We had an extensive conversation. I believe it was within two or three days of October 18th. Q. What did he tell you? A. He told me that, while he viewed -- he favored creationism, that is his belief, he felt that what the board was trying to do was wrong and illegal, sir. Q. Did he explain why he thought it was wrong? A. Here, I'm attributing, okay. Mr. Weinrich was a very strong believer in the separation of church and state as to constitutionality of things, what was in the constitution and what was not. He took his oath as a municipal officer very seriously, as did I. We often had conversations about that. School board directors are considered municipal officers. Q. This is what he conveyed to you? A. Yes, sir, to both my husband and to myself. Q. Did Mr. Weinrich oppose the policy at the October 18th meeting, speak up against it? A. He did indeed, sir. Q. You spoke up against it as well? A. Yes, I did, sir. Q. And did one or more of the teachers speak up about what their position on the policy? A. They were very concerned about it. They felt, because it was to be included in the curriculum instructional guide -- excuse me -- the curriculum planned instructional guide, that they were being asked -- they were being put into a position where they might be in violation of the law. Q. At that meeting, did anyone who voted for the change in the curriculum explain why that change was a good thing for the students? A. No, sir, no one did. Q. Did anyone in the board at that meeting explain what intelligent design is? A. No, sir. Q. Did anyone who voted for the curriculum change explain why intelligent design is good science? A. No, sir. Q. Were any outside speakers brought in to inform the board on the subject of evolution -- I'm sorry, the subject of intelligent design or the other proposed changes to the curriculum guide? A. Not that I am aware of prior to the policy being implemented, sir. Q. So that's at the meeting or prior? A. Correct, sir. Q. The October 18th meeting? A. Yes, sir. Q. Other than Pandas, did the board members receive any materials explaining intelligent design before they had to vote? A. Not that I am aware of, sir. Q. Did anyone describe what the problems in evolution were that were being referred to in the curriculum change? A. At no time, sir. Q. Ms. Brown, at the beginning of your cross examination, Mr. Gillen asked you about the two conversations you recalled about being asked whether you were born again? A. Yes, sir. Q. And in the case of Mr. Buckingham, it was a conversation that occurred on a ride home from a, I think you said, a curriculum committee meeting? A. A policy committee meeting, sir. Q. So that's not -- that's different from the curriculum committee meeting? A. Very much so, sir. Q. He actually asked you to refer to pages of your deposition where you gave testimony on that subject, correct? A. Yes, I did. Q. Could you turn to page 86 of your deposition? And tell me when you're there, please? A. I'm there, sir. Q. Matt, you can put it up on the screen as well. Ms. Brown, I'm going to read the questions that Mr. Gillen asked you, and I'd like you to read the answers. A. Yes, sir. Q. Beginning at line 22. Now if I understand you correctly, Mrs. Brown, it was some discussion of the biology text outside of this April meeting? If you could please answer? A. I'm getting there. Mr. Buckingham and I had a discussion. He had -- okay. There are a couple words missing there. He had occasion to drive me home. I did not drive that day. He was kind enough to offer me a ride home. And during that ride, we discussed the role of faith in the schools. Q. Do you recall what Mr. Buckingham said to you on that topic? A. He felt that it was important to bring God back into the classroom. Q. And when you had this conversation, did you have a sense for what he meant by that? A. I am not sure how much clearer one can be, other than to say, we want to bring God and faith back into the classroom. What exactly do you want? Q. That's what I'm trying to get. Did he make any specific recommendations for a course of action? Did he say the kids should pray again in school? A. Yes, he did. Q. Anything else, did he mention? A. He felt that we should bring prayer and Bible reading back into the schools. It so happens that Mr. Buckingham and I are the same age. So we both remember that time period. And there was a discussion relating to the breakdown of society and morality. And Mr. Buckingham attributed that to the removal of prayer, the Bible, etc., from our school systems. Q. And I take it, you had a discussion with him, and I'm sure that he did not hear just plain yeses from you. How did you respond to Mr. Buckingham? A. I said very little. I responded when necessary because I was frightened. Q. Just so that I understand you correctly, when you say frightened, did you mean you felt uncomfortable with this sort of -- A. I was physically frightened of what he was saying. Q. Okay. What do you mean by that, Mrs. Brown? Did you feel threatened? A. No, I wasn't in fear of him. I was frightened of what he was saying and what I saw as a possibility of what could occur. Q. Is what actually occurred in Dover with the change of the biology curriculum the kind of thing you were frightened of? A. Yes, sir, it was the beginning. MR. ROTHSCHILD: I have no further questions. THE COURT: Mr. Gillen, recross. RECROSS EXAMINATION BY MR. GILLEN: Q. Mrs. Brown, you said no one explained what the gaps were in Darwin's theory, correct? A. Yes -- MR. ROTHSCHILD: Objection, Your Honor, mischaracterizes the testimony. That was not what she said and that was not my question. THE COURT: Well, she answered the question. MR. ROTHSCHILD: Your Honor, if I could clarify? I asked her whether anybody identified the problems in Darwin's theory. THE COURT: I'll give you one more round on redirect if you want to clarify the answer. I'll overrule the objection. The answer stands. You can proceed. BY MR. GILLEN: Q. Didn't -- didn't the language you suggest have to do with gaps in Darwin's theory? A. Yes, sir. Q. Were you proposing language that you thought you had no basis for? A. What I was trying to do was clarify to the best of my ability. I knew that we would be having a discussion on this, and I was trying to give a starting point of suggestions. If you notice, I did not mention intelligent design, sir. Q. Do you know that the final statement passed by the board includes a reference to gaps in Darwin's theory? A. Yes, I do, sir. It was not my original language though, sir. MR. GILLEN: No further questions, Your Honor. THE COURT: Now we'll break my general rule of two rounds each. Do you have any clarification you want -- MR. ROTHSCHILD: I won't let you break that rule, Your Honor. No reredirect. THE COURT: Rules are sometimes made to be broken, but I appreciate that, Mr. Rothschild and Mr. Gillen. All right. That will complete your testimony. Ma'am, you may step down. Let's take the exhibits for this witness. They are as follows: P-21 and P-25 are the board issues. Are you moving for the admission of those? MR. ROTHSCHILD: I am, Your Honor. THE COURT: Any objection? MR. GILLEN: No objection. THE COURT: They're admitted. P-45, P-46, P-53, and P-54 are all articles. I assume we'll hold admitting the articles subject to additional testimony, is that correct? MR. ROTHSCHILD: That's right, Your Honor. THE COURT: All right. So you're not moving for the admission of those. P-660 is the packet of documents provided at the 8/27/04 board meeting. Are you moving for the admission of P-660? MR. ROTHSCHILD: I am, Your Honor. THE COURT: Any objection? MR. GILLEN: We only object to the handwritten notation on the top. THE COURT: You'll have to refresh my recollection. The handwritten notation? MR. GILLEN: Sure. I have no problem with -- she was given the documents. We object to the handwritten notations, which is hearsay, and we don't believe that it was -- and there's no evidence so far as I can tell. THE COURT: Was that the date, do you recall? MR. GILLEN: Yes. THE COURT: Do you want to redact it for the record? MR. ROTHSCHILD: I don't. THE COURT: No, I know you don't. I knew that, Mr. Rothschild. It may be after lunch, but I'm relatively quick in the uptake. Mr. Gillen, are you saying you want to redact it? MR. GILLEN: Yes, because it is a hearsay statement. She has testimony in trial that's been subject to cross examination about her dating, but the statement itself is hearsay. MR. ROTHSCHILD: Your Honor, the declarant was on the stand and verified this. I mean, I really don't understand -- THE COURT: I find it reliable. She said she got her date mixed up. She interposed another date. You had the opportunity to cross-examine her on a change in the date. I'm going to admit it. I don't think there's any reason to exclude it, so that's admitted without any necessity of redacting the exhibit. All right. P-73 is the memo regarding the biology curriculum dated 9/20/04. MR. ROTHSCHILD: I move that in. MR. GILLEN: No objection. THE COURT: All right. That's admitted. P-681 is the letter dated from the witness, dated September 22, '04. MR. ROTHSCHILD: We would like to move that in. THE COURT: Or statement from the witness, I guess, better characterized, I think. Was it a statement or a letter? MR. ROTHSCHILD: I think it was actually a -- it was 681, you said? THE COURT: Yes. MR. ROTHSCHILD: That was Mrs. Brown's memorandum of September 22nd in which she responded. THE COURT: Yeah, it's a memo. I mischaracterized it both ways as a memorandum. Are you moving for admission? MR. GILLEN: No objection. THE COURT: P-681 is admitted. P-75 is the memo from Baksa dated 9/28/04. MR. ROTHSCHILD: We are moving that in. MR. GILLEN: No objection. THE COURT: That's admitted. P-84, A, B, and C, the memo to the board, again, from Baksa, with attachments. MR. ROTHSCHILD: We are moving that into evidence. MR. GILLEN: No objection. THE COURT: That's admitted. P-151 is the Dover curriculum advisory committee comments. Moving for admission of that? MR. ROTHSCHILD: Yes, Your Honor. THE COURT: Any objection? MR. GILLEN: I lost track of the number, Your Honor. THE COURT: 151, Mr. Gillen. We're going rapidly. MR. GILLEN: No objection, Your Honor. THE COURT: All right. 151, P-151 is admitted. P-209 is the Dover biology curriculum guide. Are you moving for the admission of that? MR. ROTHSCHILD: I am, Your Honor. THE COURT: That's P-209 then. Mr. Gillen. MR. GILLEN: No objection. THE COURT: That's admitted. P-688 is the -- that is actually the resignation speech, as read into the record by the witness. Are you moving for that, admission of that? MR. ROTHSCHILD: I am, Your Honor. THE COURT: No objection. MR. GILLEN: Make it easier to read. No objection. THE COURT: All right. That's admitted. P-688 is admitted. Now I have no other Plaintiffs' exhibits. Do I have them all? MR. ROTHSCHILD: You do have all of the exhibits that we would like to admit through this witness. There was an Exhibit 42 from either yesterday or the day before that we did have to redact. We have now provided redacted versions of P-42 to the Court, and we would like to move that into evidence. THE COURT: Identify just what P-42 is for the record. MR. ROTHSCHILD: It's the agenda from the June 7th board meeting. THE COURT: All right. You took the handwriting off it, is that correct? MR. ROTHSCHILD: That is correct, Your Honor. THE COURT: Any objection to the redacted -- MR. GILLEN: No, Your Honor. THE COURT: -- copy. All right. P-42 is admitted. Then no other Plaintiffs' exhibits for this witness. And then I show no exhibits referred by you, Mr. Gillen, on cross. MR. GILLEN: That's correct. THE COURT: So we have nothing else. So that will complete all the exhibits for this witness. And we are prepared then for your next witness? MR. HARVEY: Your Honor, the Plaintiffs call to the stand, Jeff Brown. Whereupon, JEFFREY ALLEN BROWN having been duly sworn, testified as follows: THE WITNESS: Jeffrey A. Brown, or Jeffrey Allen, whichever you prefer. J-E-F-F-R-E-Y. A-L-L-E-N. B-R-O-W-N. DIRECT EXAMINATION BY MR. HARVEY: Q. Mr. Brown, I was going to ask you your name, but then I realized you just said it. Are you married? A. Yes. Q. Please tell us the name of your wife? A. Carol H. Brown. Q. And Mr. Brown, did you ever serve as a member of the board of directors in the Dover Area School District? A. Yes. Q. Approximately what years? A. From 1999 to 2004. Q. And do you remember the date in 2004 when you resigned from the board? A. October 18th. Q. Who was the president of the board of the Dover Area School District on October the 18th, 2004? A. Alan Bonsell. Q. Do you remember when Mr. Bonsell ran for the board? A. Yes. Q. What year was that? A. That would have been 2001. Q. Did you run with him? A. No. Q. Do you recall a conversation with him when he was running for the board about what he wanted to do as a board member? A. Yes. Q. Please tell. A. Sorry? Q. Please tell us what you can remember he told you what he wanted to do as a board member? A. He wanted to -- he did not believe in evolution. He wanted creationism taught side-by-side with evolution in our biology classes. He felt that taking school prayer and Bible reading out of school was a mistake and he wanted to see it reinstated at Dover. Q. When was this conversation? A. During the summer of 2001. Q. Do you remember where that took place? A. At his house. Q. Do you remember why you were there? A. Yes. My wife was running with Mr. Bonsell and two other people, Mrs. Harkins and Mrs. Yingling, as a slate of candidates, and I was involved in the campaign. Q. Do you recall, did the board of directors ever have retreats? A. Yes. Q. Do you recall a retreat in January of 2002? A. Yes. Q. How is it that you recall that retreat? A. The other day, Eric Rothschild showed us some documents from those retreats and it jogged my memory. I had forgotten them prior to that. Q. And do you remember what Mr. Bonsell said at that retreat? A. The -- we were asked as board members what were our areas of major concern, what would we like to see the board do. And Mr. Bonsell mentioned the teaching of creationism and Bible reading as two of the areas of his concern. Those were not the only ones. He also mentioned American history and school uniforms, as I recall. Q. Mr. Brown, are you -- do you remember him saying that or are you just telling us what you saw in the documents? A. No, I remember him saying those things. I had -- again, seeing it brought it back. Q. Now do you remember a retreat of the Dover Area School District Board of Directors in March of 2003? A. Yes. Q. And can you tell us how is it that you remember that retreat? A. Again, the same thing, the documents. It triggered it. It brought it back. And, yeah, I remember that. Q. Do you remember what Mr. Bonsell said at that retreat? A. He mentioned, again mentioned creationism. He felt it belonged in biology class alongside evolution. Q. Do you recall an occasion when you were inside Dover Area High School with a man named Larry Reeser, another man named Noel Weinrich, and Mr. Bonsell? A. Yes. Q. And do you remember that you had a conversation in there about a piece of art? A. Yes. Q. And can you tell us, what was the piece of art that you had the conversation about? A. It was a series of panels. It was painted on plywood, four-by-eight sheets of plywood. And it comprised a mural, a very large mural, obviously, that many sheets of plywood. And it depicted an ape at one end and a very recognizeable modern day man at the other and a series of evolutionary stages in between. Q. Now do you remember when that happened? A. It would have been -- it would have been in 2003, during, I believe it was during the summer, but I'm not positive. Q. And do you remember the conversation that you had -- A. Yes. Q. -- on the subject? Can you tell us what you can remember of that conversation? A. Mr. Reeser gave the opinion that he felt the picture was offensive because it was -- it depicted male nudity. And all of us agreed with him, that it could certainly be taken as that. I didn't have a problem agreeing with him on that. And then Mr. Bonsell, I remember -- I can't remember his exact words, but I do remember him literally like snorting through his nostrils and commenting on the subject matter, as Larry Reeser had said, the -- I don't think kids should be exposed to this kind of thing. And then Alan volunteered the opinion, he didn't think they should be exposed to this kind of indication that this is where we came from, that sort of thing. I can't remember his exact words, but that was the gist of it. Q. Who was the president of -- well, you already told us that Mr. Bonsell was the president of the board in 2004. Can you tell us, who was the head of the curriculum committee that year? A. In 2004? Q. Yeah. A. William Buckingham. Q. How did Mr. Buckingham get to be head of the curriculum committee? A. The heads of committees are always appointed by the president, so Alan Bonsell would have appointed him. Q. Do you recall a conversation with Superintendent Nilsen about the rotating nature of the presidency of the board of directors? A. Yes. Q. Tell us what you can recall about that conversation? A. Well, it began with his complaint that we had instituted, beginning in actually December of 2001, we had instituted a policy where a person would serve one year as president, step down, and a new president would be elected. It was not set in stone that the vice president would automatically become the president, but that was pretty much the way it was understood. The board always had the right to elect someone else. And Dr. Nilsen said that he found it very difficult to deal with, because each incoming -- each year, he had to deal with a new set of priorities. And he mentioned that my wife's priorities had been all-day kindergarten, world languages; Mr. Weinrich, who had succeeded her as president, his concerns had been the building project; and that Mr. Bonsell's concerns had been American history and creationism. Q. Do you know what Mr. Bonsell's view on evolution is? A. He regards it as fiction. Q. How do you know that? A. Because he told me. Q. And do you remember when he told you that? A. I can't give you an exact date, but it would have been -- I can't give you an exact date, no. Q. Do you know what Mr. Buckingham's views on evolution are? A. They're essentially the same. I think he described it as atheist propaganda. Q. And how do you know that? A. Because he said it in my presence. Q. And can you remember when that happened? A. It was an executive session. There were other people present when Mr. Buckingham made his statement. Now what Alan said to me was said in a more private conversation. It was at a board meeting, but I cannot remember when it was. Q. In 2003, Mr. Bonsell was the head of the curriculum committee, isn't that true? A. Yes. Q. Did you ever have a conversation with Mr. Bonsell about why he wanted to be the head of the curriculum committee? A. He had stated that, actually when he was still running for the board, he hadn't said he wanted to be the head of the curriculum committee -- well, maybe he did. At any rate, I remember him saying he wanted to be on the curriculum committee because he had concerns about the teaching of evolution and he wanted to see some changes in that area. I am not positive he was more specific than that, but he had other statement -- it runs together in my mind literally. Q. Do you ever remember a conversation regarding Heather Geesey and Mr. Bonsell and Jane Cleaver and Mr. Buckingham where they were talking about taking prayer out of school? A. Yes. Q. When was that conversation, if you recall? A. That would have been in 2004, either in August or September. Q. Tell me what you can recall of that conversation? A. The -- they were talking among themselves. And I was only standing a few feet away. And we were stating -- it began with one of them -- it may have been Mr. -- I'm not certain who started the conversation. I know that the conversation concerned -- it began with the premise that taking prayer and Bible reading out of school had been a mistake and had caused a great number of problems. And I cannot state which -- who said what. They were all part of the conversation. And they were nodding heads during the conversation. I came away with the feeling that they all agreed with the things being expressed. And there was no real concrete endeavor to, you know, they didn't discuss how they could put it back in, but they were all very much of the opinion that these changes had been a mistake. That was the word that was used, mistake. Q. Do you recall a conversation in or around June of 2004 with Mr. Weinrich and Mr. Bonsell about the subject of intelligent design? A. Intelligent design? No. Q. Well, do you recall -- let me ask you another question. Do you recall a conversation with Mr. Bonsell and Mr. Weinrich in or around June 2004 about the origins of life? A. Yes. Q. Tell us what you can recall of that conversation? A. They were addressing a -- I can't remember the fella's name, but it was a community member, and he had spoken -- Mr. Buckingham had objected to the book Biology as being laced with Darwinism. And this person, this member of the community, whose name escapes me, was defending Darwin's theory. And Mr. Buckingham, Mr. Bonsell, and Mr. Weinrich were all addressing him during the public comment section. And -- Q. Let me just ask you. A. Yes, you'll have to be more specific here. Q. I'm not asking you about a board meeting. A. You're not asking about a board meeting, all right. Q. I'm asking if you can recall a conversation outside of a board meeting with Mr. Weinrich and Mr. Bonsell about the subject of origins of life? A. Yeah, I can recall a conversation with them, but I'm not sure what specific one you're referring to. I'm sorry. Q. Do you remember having a conversation with them outside the administration building in Dover? A. Thank you. That's much more helpful. Yes. Q. Tell us what you can -- when was this conversation? A. It was, I believe it was the same day that we had toured the building. I believe it was later in that same day. Q. And when was that? A. Again, I'm not certain. It was -- it was in 2003, but -- and I believe it was in the summertime, but I can't be more specific than. Q. Okay. Let's put that aside for now. A. I'm sorry. Q. Do you recall a meeting of the Dover Area School District Board of Directors on June the 7th of 2004? A. Yes. Q. And did you attend that meeting? A. Yes. Q. And do you remember Barrie Callahan speaking at that meeting? A. Yes, I do. Q. And do you remember what Barrie Callahan said? A. Not word for word, but she was questioning the status of the book, Biology; what was happening, why hadn't it been approved, things of that nature. Q. Had Mrs. Callahan raised this before? A. Yes, she had. Q. And had anybody on the board offered support for her previously? A. The previous -- I believe it was at the previous meeting, she had brought up the subject, and Mr. Buckingham had responded that the book is currently under review. And that was pretty much the end of it. Q. And how many times before this meeting on June the 7th had she raised this subject of the Biology textbook? A. Now that, I can't answer. It was probably more than that one time, but I can't be sure about that. Q. Do you recall what was said by anyone on the board to Mrs. Callahan on June the 7th, 2004, when she raised the subject of the Biology text? A. Vividly. Mr. Buckingham told her that he objected to the book and would not recommend it because it was, quote, laced with Darwinism, unquote. Q. And do you remember anything else that Mr. Buckingham said in that conversation in response to Mrs. Callahan? A. Nothing so vividly as that one. That one really sunk in. Q. Do you remember any other members of the board speaking to Mrs. Callahan in response to her question? A. On that particular instance? No, not off the top of my head. Q. Do you remember a student named Max Pell speaking at that meeting? A. That's the one. That's the person -- that's the community member whose name I could not remember, yes. Q. Do you remember what Mr. Pell said on that occasion? A. Not word for word, but the gist was, he was very supportive of Darwin's theory, and he didn't understand the objections to it. And Mr. Weinrich and Mr. Bonsell and Mr. Buckingham literally took turns arguing with him. The arguments took various forms depending who was speaking. I remember Mr. Weinrich stating that, when you teach one theory, you're, in essence, teaching -- when you teach only one theory, you are, in essence, teaching it as fact. I remember him making that statement. But all three of them were supporting the addition or at least the possibility of the addition of creationism into the biology curriculum. Q. Do you remember anyone discussing intelligent design at that meeting? A. I'm not positive it was that meeting or not. There was one mention of the board, and I made it. But it may have been at the succeeding meeting. I'm not positive. There was no discussion of intelligent design, no. Q. When was the mention of intelligent design that you have in mind? A. At one point, Mr. Buckingham used the word creationism, and I suggested intelligent design. And I better explain that. At that point, I knew very little about it. I had seen the word in the newspaper article, Newsweek. I'm not sure where I saw it. But I was aware of the term. And my concerns at that time -- and you're going to make me give some background here -- I was very concerned that -- Q. Let me ask you a question. What was your concern at that time? A. Thank you. My concern, as far as the opinions that were being given, was that we might be stating in our biology classes -- in fact, I was getting the opinion, impression from the board members opposed to teaching evolution that we were literally telling our students, evolution occurs without any form of plan, pattern. There's no -- it's all accident. It's purely, that we're essentially talking about a universe with no greater purpose. And I felt, if that was indeed the case, then we were tramping on people's toes, because the fact of the matter is, whether there's a greater purpose or not is beyond the purview of science. It is -- we're in the realm of philosophy or theology, if you will. And I was concerned, if we were doing that, and I had read this term phrase, intelligent design, and I interpreted that as meaning simply a counter point. And I wanted to -- I didn't have a problem with the phrase intelligent design inasmuch as if it meant only that there is a body of opinion out there that feels this may not have all been blind chance. If we were going to tell them one, I felt we were within our rights to tell them both. And I suggested that phrase to Mr. Buckingham. And Mr. Bonsell echoed it. Now this may have been the June 7th meeting. It may have been the June 14th. I cannot recall which one. That was the first time intelligent design was ever mentioned at a Dover board meeting, and there was nothing further said about it. It was just my mentioning the phrase. Alan repeating what I had said, intelligent design. And that was it. It didn't come up again at that meeting. Q. Do you recall a meeting of the Dover Area School District Board of Directors on June the 14th of that same year? A. Yes. Q. And did the subject of the Biology textbook come up? A. Yes. Q. Did the subject of creationism come up? A. Yes. Q. Tell us, if you can remember, how the subject of creationism came up? A. It actually came up during the public comment section of the meeting, which is actually the first part of our meeting. Before we go into our regular agenda, we have public comment. And Mr. Buckingham's wife spoke for 15 minutes, which is 10 minutes longer than we normally give members of the public to speak, but there was no attempt from the chair to cut her off. For 15 minutes, she essentially evangelized and stated that it was our duty, our responsibility to include creationism into the classrooms. I believe, but I'm not -- it seems to me she also mentioned Bible reading and prayer, but I can't be certain of that. I think she said it. I'm not positive. But she definitely was speaking in favor of including creationism in our biology curriculum. And the public comment section actually spilled over into the board members got involved in it. And I began arguing that we can't teach creationism. And Mr. Buckingham became very upset with me, and said, 2000 years ago, someone died on a cross for us. Isn't it time we take a stand for him? Q. Now I'd like to change the subject for just a second and talk about the textbook of Pandas. Have you ever heard of that? A. Yes. Q. When did you first learn about Of Pandas and People? A. It would have been the Thursday before Mr. Buckingham proposed votes -- our meetings were always on Monday. The Thursday prior to that Monday -- this is very complicated, but I don't know the date off the top of my head. At any rate, on a Thursday, my wife got a phone call from Mr. Baksa, the assistant superintendent, who told her that Mr. Buckingham had this book, Of Pandas and People, that he was recommending the district buy as a supplemental biology text. Q. Let me stop you right there and see if we can clarify the date of this before you continue. There was a meeting of the Dover Area School District Board of Directors on August the 2nd, 2004, at which there was a discussion of approval of a biology textbook. Do you recall that? A. Yes. Q. Now where was this telephone call that you were just relating in relation to that August the 2nd meeting? A. That was the Thursday prior to that date. Q. Okay. Now tell us how you learned on the Thursday prior to the August 2nd meeting about the textbook, Of Pandas and People? Q. From my wife. She took the call. She relayed it to me. I came home from work. I don't think she had the car that day. And she asked me if I would go to the administration building and pick up a copy, because she was livid. She was on the curriculum committee. And Mr. Buckingham was proposing buying a book to add to the curriculum and not even consulted with her. Q. Was this what she told you on that occasion? A. That's what she told me, yes. Q. And then what did you do? A. I went to the administration building to see Mr. Baksa, and he said, I don't have a copy. I think Dr. Nilsen does. I went to Dr. Nilsen's office. He said, no, I gave my copy to Sheila Harkins. Q. Then after Mr. Nilsen told you that, what did you do? A. Dr. Nilsen called Sheila. She was at home. He asked her, could I come over and pick up the book. She said, yes. So I went to her house. Q. Did you have a conversation with Mrs. Harkins at her house? A. Yes. Q. And did you discuss the subject Of Pandas and People? A. Well, I couldn't really discuss it -- well, okay. Only in the sense that they wanted to buy the book. I hadn't read it yet, obviously. Q. Do you remember what she said to you in that conversation? A. I remember that conversation pretty vividly. The first thing I said -- she said -- the first thing she said to me was, I think we should buy this book. I looked at her. I said, Sheila, you don't even want to buy the books that we're supposed to buy, why do you want to buy this book that we don't even need and the state is not requiring us to buy. She said, read the book. I said, fine, I plan to read it, but why are you so in favor of buying this book? She said, just read the book. And I told her at that point, I said, I can't support buying a book that is not required by the state, because we had just, to get our budget passed, we had just cut our library funding in half. We had -- we were discussing and later passed a motion whereby volunteers for the district would be required to pay $10.00 a head toward the costs of defraying the costs of the background checks that were required, due by law. I said, you can't stand there and cut library books in half and make people pay $10.00 a head to work for the district for free, and then buy a textbook that you don't even need. I said, if we do this, we're likely to get sued. Initially my argument was, misuse of tax payer funds. She started going on about how this book was such an eye opening thing of what's wrong with evolution and so on and so forth. I told her, I said, Sheila, we can't touch that subject. I said, with all the statements that Bill has made that have been in the press and have actually gone wire service, I said, if we even touch this subject, we're going to end up in court. And she remained adamant. She was in favor of buying the book. I took it home, and I got to the second paragraph -- Q. Well, let's stop right there. You took the book home with you, is that your testimony? A. Yes. Q. Did you read it when you got home? A. Yes. Q. And how long did it take you to read it? A. All weekend. Casey and I traded back and forth. Q. Did you discuss it? A. Yes. Q. Tell me, what was your reaction to the book? A. By the second paragraph, I felt they were calling me an atheist because I believe in evolution. And that made me furious. I remember talking to Casey and, you know, she made the comment, it's bad science and worse theology. And I said, absolutely. That was pretty much our take on it. Q. Now was the board -- excuse me, was the book discussed at the next meeting of the board on August the 2nd? A. Yes. Q. And do you remember if Mr. Buckingham took a position on that book? A. Oh, yes. Q. And can you tell us, what was his position? A. All right. Mr. Buckingham introduced the motion to buy the textbook, Biology, which was on our agenda. And we only had eight members there. Mrs. Cleaver was not present. The -- we took the vote. Four members, Mr. Buckingham, Mrs. Harkins, Mrs. Yingling and Mrs. Geesey all voted, no, they would not buy the book. Mr. Bonsell, myself, Mrs. Brown, and Mr. Weinrich all voted, yes. The motion failed. It was a four, four tie. At that point, Mr. Buckingham stated that he had five votes to buy the book, Of Pandas and People, as a supplemental text, but because the administration had refused to recommend it under state law, it would require six votes. And he didn't have the sixth vote. And what he said -- and he said this in a public meeting -- I will bring this up at a future meeting. I will first introduce a motion to buy the book Of Pandas and People. He was very explicit about this. If it gets the necessary six votes, I will then introduce the motion to buy the book, Biology, by Prentice Hall. And I will release my votes to vote for it. If, however, it fails to get six votes, I will not release my votes for the book, Biology. And at that point, I got extremely angry and we engaged in -- I demanded to know what would happen if I were to read this book and feel it was not worth the tax payer's money. And he looked me right in the eye and said, then you don't get your book. And he said, and I quote, either I get my book or you don't get yours. Q. Did the book, approval of the Biology textbook came -- was it approved at that meeting? A. Eventually, yes. Mrs. Yingling changed her vote. Q. Now do you recall, moving away from that meeting, do you recall an executive session -- first of all, tell us, what is an executive session of the board of directors? A. All right. We are allowed to call -- under the Sunshine Act of Pennsylvania, we must conduct our meetings in public, in the sunshine. But there are specific exemptions. If we are discussing legal matters or personnel issues or contractual matters or discipline for minors, we go into what's called executive session. The board, the superintendent, sometimes other administrators, if needed, will be present. But it's not -- there are no reporters present. The public is not. It's essentially out of the sunshine, to use the legal term. Q. Do you recall an executive session of the Dover Area School District Board of Directors where it was a donation of Of Pandas and People to the School District was discussed? A. Yes. Q. Tell us what you can remember about that discussion? A. I believe this was in September of 2004. By this time, Bill was resigned to not getting his books through the school board. And Mr. Buckingham stated in this executive session, and I'm pretty certain it was in September, that he was soliciting donations to buy the books to be donated to the school to be placed in the classrooms. And I told him, you might have a problem with that. I said, if you want to put it in the library, no problem. We have a standing policy for, you know, accepting donations to the library. I said, but there's no policy on donating books directly to the classroom. And he looked me right in the eye and said, I am not asking people to contribute money for these books if they're just going into the library. I want them in the classroom. I said, well, I'm just telling you what the policy is. And I dropped the subject because by that time, relations between Mr. Buckingham and I were pretty poisonous anyway and I didn't need to get into it any further. And at that point, Mrs. Cleaver and Mr. Bonsell both said that he should put them down for a donation. Q. Did you later learn that the Pandas had been donated to the school district? A. Yes. Q. When did you learn that? A. I believe it was the first meeting in October of 2004. Dr. Nilsen made a statement to the board during our public meeting that the books had been accepted and that the teachers have -- I believe he used the phrase have no problem with their being placed in the biology classrooms as reference books. Q. Now did you attend the meeting of the board on October the 18th of 2004? A. Yes. THE COURT: Mr. Harvey, if you're going to get into a new line of questions, why don't we take this opportunity to take our afternoon break. And we'll break for about 20 minutes at this juncture, and then we'll return. And I would remind you that, if it works well, counsel, I would intend to go to 5:00, or as close to 5 as we can get this afternoon. So we'll recess for about 20 minutes. (Whereupon, a recess was taken at 2:57 p.m. and proceedings reconvened at 3:25 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 4 (September 29), PM Session, Part 2 THE COURT: As a matter of housekeeping, before Mr. Harvey commences again his direct examination, we'll note that we may not need to go to 5 today, but we'll go no later than 5 today, depending on the witnesses presented by the Plaintiff. Tomorrow, we will start our session at 12:30 p.m., by agreement with counsel, and it is not anticipated, for everybody's benefit, I will say, it is not anticipated that that will be a long session. It will be a rather abbreviated session tomorrow afternoon. Likely, it will not last more than several hours. Counsel, is that a fair statement, at best? It may be shorter than that. MR. GILLEN: Yes, Your Honor. THE COURT: Then we'll be in recess Monday and Tuesday of next week, and we'll reconvene on Wednesday of next week. So with that, Mr. Harvey, you may continue. DIRECT EXAMINATION ( CONTINUED) BY MR. HARVEY: Q. Do you recall an executive session of the Dover Area School District Board of Directors prior to its meeting on October the 18th of 2004? A. Yes. Q. And do you recall what Mr. Buckingham said during that executive session? A. I recall at least some of the things he said. Immediately before we adjourned to go to our regular meeting, just prior to that, Dr. Nilsen had handed out two alternate -- our executive session was called for a non-related matter, but while we were in there, he handed out an appended version from the teachers -- the teachers had learned about three and a half hours prior to our meeting that we were to vote on this curriculum change that night. And they had, the science department had put together a motion that they felt they could live with, a compromise resolution, if you want to call it that. The administration had also put together a compromise resolution on their own. He handed us copies of both those. Now we had in our board packets a compromise resolution from the administration that had been composed the week before. So we had two compromised resolutions from the administration, one from the science department at the high school, and, of course, then we had the motion that Mr. Buckingham read. And as Dr. Nilsen -- Dr. Nilsen handed these to us. And we were starting out the door, and Mr. Buckingham said, let's get this thing done. We know what we've got to do. This is taking too long already. Words to that effect. I'm not absolutely certain of the wording. But that was the gist of it. And I looked at him. I said, well, see you on the other side, Bill, and we went out the door. Q. Now at the board meeting, do you recall there being a public comment section, portion of the meeting? A. Prior to the meeting? There always was. I don't recall it. Q. I'm talking about at the October 18th board meeting, do you recall the public comments section? A. Well, okay, we have on the agenda a section listed for public comment. I don't recall what occurred during that. I had also known that during discussion on agenda items, the public is allowed to join in the discussion. That, I remember very vividly. But I don't recall the public comment section at the beginning. I know we had one. We always did. But I don't recall it. Q. So you recall members of the public speaking up? A. Yes, during the discussion on the intelligent design motion, yes. Q. Approximately how many members of the public spoke up? A. I couldn't tell you. I know for a fact that Bertha Spahr and Jennifer Miller both spoke several times. Q. Were they science teachers at the high school? A. Yes, yes, they were science teachers at the high school. Q. Of the people that spoke up, were -- could you say most were in favor or against or could you approximate? A. The ones I recall were against. I can't say -- I really haven't given this a -- this part of it a great he'll deal of thought. I remember the science teachers very vividly because they were making points that I felt needed to be made. I'm not going to say that no one from the public didn't come up and -- I can't remember. Q. Now did any of the board members who supported the proposed change to the biology curriculum explain their reasons for supporting the proposed change at that meeting on October 18th? A. Not to my recollection, no. Q. Do you know if any of the members who supported the proposed change explained their reasons for supporting it at any other meetings? A. Absolutely not. Of that, I'm absolutely certain. Q. Who made the motion to introduce to change the biology curriculum? A. Mr. Buckingham. Q. And tell us happened to that motion? A. He made the motion. It was seconded. And Mr. Weinrich immediately proposed to amend the motion. And under parliamentary procedure, the most recent motion must always be voted on first. So we immediately went to voting on Mr. Weinrich's proposal, which was to table Mr. Buckingham's motion for further study. And during that discussion period, I proposed that we form a committee of teachers, administrators, members of the public, and I volunteered to be on the committee, you know, to look into this, because I viewed this as a radical change with long-term ramifications, and I felt we were being way too hasty. We had, in fact, violated about every policy we had on this issue. Q. Tell us happened to that motion to table? A. It was voted down, 6 to 3. Q. Were there any other motions other than the motion that had been made by Mr. Buckingham? A. There were at least a dozen, possibly more than that. Mr. Weinrich proposed one amendment to the motion after another. He began by introducing -- I believe the first he introduced was the teachers' compromise resolution. That was voted down, 6-3. He brought in both the administrations. They were both voted down, 6-3. He proposed motions of his own. But all of his motions, while they essentially said, everything that was in Mr. -- the motion that Mr. Buckingham had read, the critical difference was, and this was true of all the compromises, none of them mentioned the words intelligent design. And Mr. Weinrich, I could tell what he was doing. He was essentially composing their resolution as word-for-word as he could without using those two words. And they were all voted down 6 to 3. Q. Did any of the motions introduced that evening ultimately pass? A. Two of them. Q. Explain that. A. I introduced -- at one point, the teachers were arguing -- Mrs. Shaberlig or Mrs. Miller, I can't remember which, were arguing that, by placing mention of intelligent design in the instructional curriculum, which is what they were doing, they felt -- past precedent was, anything in the instructional curriculum, it was reserved strictly for subjects that are to be taught. And their objection to these words was, you're putting it in the instructional curriculum. We feel that this obligates us to teach it. And Mrs. Geesey and, I believe, Mr. Buckingham also both said, that's not what we -- we're not asking you to teach it. But they would not take it out of the instructional curriculum either. So I lifted a phrase from the teachers' resolution, the last -- I forget the rest of the resolution. But the last words were, note: Origins of life will not be taught. And I proposed a motion that these words be lifted from the teachers' and drafted onto Mr. Buckingham's, and that passed. Q. And can you tell us who voted in favor of that and who voted against? A. No, I can't. I only know that it passed. It may very well have been unanimous. I don't know. But it certainly passed. Q. But, I mean, the ultimate resolution to approve Mr. Buckingham's motion? A. The only other resolution that passed was the amended -- it was Mr. Buckingham's resolution plus the note: Origins of life will not be taught. And Mr. Bonsell, Mr. Buckingham, Mrs. Cleaver, Mrs. Geesey, Mrs. Yingling, and Mrs. Harkins all voted for it. And Mr. Weinrich, Mrs. Brown, and myself, voted against it. Q. Now you're referring to the ultimate motion? A. The ultimate motion, yeah. That's the other motion that passed that night. Q. Your wife resigned at that meeting? A. That was the very next order of business. She asked for the permission to speak from the chair, and she read her letter of resignation. Q. Did you resign as well? A. The moment she was finished, I also asked for permission to speak from the chair, and I resigned as well. Q. And can you tell us why you resigned? A. Yes. I felt that the board had vastly overstepped any promises it had ever made to the voters of the district. They had never run on this issue. This had never been a campaign issue. I felt that they had violated their own precedent. We had never ever passed anything without going over the possible financial costs in great and excruciating detail on that board. And I'm talking about things as small as selling the right to hang signs on our high school football field. That occasioned about a two and a half hour -- no, it wasn't that long. It seemed like it -- a very long debate over what was a couple hundred dollars. This board watched every nickel like a hawk. And on this one occasion, they did not want to hear any talk about possible costs, because I brought up the possibility, I said, if we are sued, and if we lose, we will have to pay the other side's legal costs. Have you thought about that? And Mr. Buckingham looked at me and said, it's a good thing you weren't around during the American Revolution, Mr. Brown, or we'd still have a queen. And -- Q. And that was said at the meeting on October the 18th? A. Yes, it was. Q. Following the meeting on October the 18th, did you have a conversation with Mr. Bonsell, this is after the meeting on October 18th, about the curriculum change that actually had been passed? A. Yes. It was, I believe, in November. Q. Where did it take place? A. At one of the -- at one of their meetings. Q. Can you tell us what he said to you on that occasion? A. We got to discussing what had happened, why I had resigned. And he was not very happy with me. And I accepted that. I wasn't real happy either. And he stated to me that, you know, I know -- how did he put that? I know part of this by heart, and then that leads into it -- I know Bill made a lot of stupid statements, he said, but I thought you were on board with us. MR. HARVEY: No further questions. THE COURT: All right. Thank you, Mr. Harvey. Cross examination, Mr. Gillen. MR. GILLEN: Thank you, Your Honor. CROSS EXAMINATION BY MR. GILLEN: Q. Good afternoon, Mr. Brown. A. Good afternoon. Q. Mr. Brown, Pat Gillen. I took your deposition. I'm an attorney for the Defendants. I'm going to ask you a few questions about your testimony here today, if I can get organized? A. Do I have to wait? I guess I do. THE COURT: Sadly for you, you do. BY MR. GILLEN: Q. I believe at the beginning of your testimony, you recounted a conversation that you had with Mr. -- or you had with Mr. Bonsell when he was running with your wife for office, is that correct? A. Yes. Q. And your recollection is that this conversation took place, and he expressed an interest in getting the Bible in school and teaching creationism, is that correct? A. Yes. Q. And your wife ran with them nonetheless, correct? A. Yes. Q. Your wife has testified to an October or November 2003 board meeting which had to do with the pledge. Do you recall that meeting? A. Yes. Q. I don't want to be unfair to you here, but there was -- the issue at hand that produced -- there was an issue at hand that produced some public controversy, correct? A. Are you talking about the pledge? Yes, a great deal of public controversy. Q. That issue was whether or not the board should pass the resolution in favor of keeping the phrase under God in the pledge, correct? A. I wouldn't use the word resolution. What they wanted to pass -- they wanted to draft a letter of support to send to the Supreme Court, which was at that time considering hearing a challenge to it. I don't know if I'd call it a resolution or not. But that was the gist of it. They were going to draft a letter of support for leaving the pledge as it is now and send it to the Supreme Court. Q. Now you took a position in public against that, however you'd like to phrase it, resolution or -- A. You can call it a resolution. That's fine with me. I don't care. Q. Let's do that, because I believe it was a resolution to send the letter? A. You're the lawyer, not me. I'm not going to argue with you. Q. And you voted against that, didn't you? A. Yes, I did. To be technically, I abstained. I did not vote against it. I abstained. Q. The reason you abstained is, as you testified in your deposition, because you felt you had a message from on high that you shouldn't support that resolution, correct? A. Yes, that's the way I would put it, yes. Q. So in that particular occasion, you took a position on a matter that the board was addressing because you thought you had a message from on high? A. I woke up the Sunday before that vote with the phrase, one nation under Allah, in my head and I couldn't get rid of it. I could not get rid of it. And I had to teach a Sunday School lesson that day, which is not the best way to go into teaching a Sunday school lesson. And it was that afternoon I came to the conclusion that, you know, because I always told my Sunday School class, when in doubt, go with the Golden Rule. I was like, oh, one nation under Allah. I would not want to have to stand up there and say, one nation under Allah. So maybe somebody else does not want to have to stand up there and say, one nation under God. And under the Golden Rule, I felt compelled to say, I can't support this. I'm opting out. Q. And as you understand the Golden Rule, that's a religious teaching of Jesus Christ, correct? A. It is, yes. Q. Now on that resolution, Sheila Harkins also abstained with you, correct? A. Yes, she did. Q. There's been some testimony about the input from the public, and I think that you've testified in your deposition that you found Barrie Callahan irritating, is that correct? A. I did make that statement, yes. Q. And you said that, at times in her appearance to the board, she was politically motivated? A. That was my opinion, yes. Q. There's been testimony today about some comments made by an individual named Max Pell at a board meeting touching on the selection of the Biology text. Did you testify on that today? A. Testify? You mean comment? Q. Concerning that exchange? A. At the very end of the conversation, I felt that Max Pell had been kind of ganged up on. As I said, Noel Weinrich, Alan Bonsell, and Bill Buckingham were literally taking turns arguing with him. And what I stated -- at the end of the discussion, I leaned into the mic and said, of course, the full board will take a vote on this Biology textbook. And I just -- I felt sorry for the guy. But also, I was stating a fact, you know. Mr. Buckingham would not make the decision himself whether we bought the book or not. It would be the full board that would do it. So I stated that as sort of -- because I felt sorry for Mr. Pell, that's why. Q. And what you were trying to convey to Mr. Pell is that the committee chairman might recommend a course of action, but it's the board that has to approve the final course of action, correct? A. Yes. Q. And you testified that you suggested intelligent design at one point, correct? A. Yes, I did. Q. And at the time you did that, you thought you were on safe legal ground, correct? A. Yes. Q. You've also testified that you believe Alan Bonsell was skeptical about some of the claims made for evolutionary theory? A. Skeptical, yeah, that's a good word. Q. But you said that you saw his objections as reasonable objections concerning things such as gaps in the fossil record, etc.? A. Yes. From the reasonable, from the standpoint, they did not cross the line into endorsing the -- the truth of the matter is, I had forgotten, when I gave my deposition, I had forgotten some of the statements that Alan made. I better get -- I'm going to have to clear that up now. After my deposition -- well, as you know from -- you conducted that deposition. There were a number of subjects where I was very vague and very fuzzy, and that has continued -- I'll tell you, my greatest fear is, I'm going to wake up tomorrow morning, assuming we get done today, and realize I forgot something else important. And I'm not kidding. I've been feeling that way for weeks. I had literally forgotten Alan's endorsement of creationism when I gave my deposition. It was not until I saw that document the other week, the one that was referred to earlier. And I was like, and my initial reaction was, would Alan say that? And then I started to think. It was like, wait a minute. And then I remembered that, you know, the 50/50, the half and half, creationism, evolution, and it came back to me. So I would have to stand here and tell you, yes, my deposition that I gave you was partial. It was not complete. It was not full. I did not recall that when I gave that to you. Q. And that's fair enough, Mr. Brown. I took your deposition on May 17th, 2005, correct? A. I'm taking your word for the date. Q. And let me -- I can represent that to you. If you want, I'll -- A. That's quite all right. I'm willing to take your word for it. Q. Okay. And at that time, you didn't remember those comments on the part of Mr. Bonsell, correct? A. That's correct. Q. In fact, in your deposition, you testified that you had no reason to believe that Mr. Bonsell's support for intelligent design theory was based on anything other than the fact that he saw it as two scientific theories, correct? Do you recall that? A. No, I don't recall saying. I'm not going to say, I didn't, but I don't recall it. Q. Well, as you sit here today, do you believe that Mr. Bonsell's support for intelligent design theory was because he basically believed they were two scientific theories? I mean, you supported intelligent design? A. Well, until I learned a little bit more about it, I did, yes. I can't -- I cannot state for a fact one way or the other. I will say this. I know Alan did not believe in evolution. What his opinions on intelligent design are, I do not know. I don't. I have no idea why he supports intelligent design. I don't know. Q. Okay. Now we have had testimony about the purchase of Of Pandas and People, correct? A. Yes. Q. And you testified to the manner in which Mr. Buckingham tried to tie together the purchase of the Biology text recommended by the science faculty, Miller and Levine Biology, with the purchase of Of Pandas and People, correct? A. Yes. Q. But Mr. Bonsell was against that use of taxpayers' money, is that correct? A. Yes, he was. Q. And on August 2nd, 2004, when Bill Buckingham tried to link purchase of the Biology text to purchase of the text Of Pandas, Mr. Bonsell did not capitulate to Mr. Buckingham's demand, is that correct? A. That is correct. Q. And you testified that, although Alan Bonsell might have had some interest in creationism, he wouldn't violate the law. He's not a bomb thrower. Is that correct? A. I testified that that was my opinion of Mr. Bonsell. And I would certainly hope that I am correct in my opinion. Q. You remember, you said that Sheila Harkins discussed the book Of Pandas and People with you? A. Yes. Q. And she expressed the notion that it would be good to teach another theory of evolution to you? A. I don't remember testifying to that. She may have said that. I'm not sure. I know she -- I remember her saying, read the book, read the book, and we should buy the book. But I'm not positive that she said it -- she may have. I don't remember at this point in time. Q. I understand. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. THE WITNESS: I'm sorry. What page do you want me to look on? BY MR. GILLEN: Q. I'll get you there. A. I have a feeling I'm about to make a liar of myself. Q. That's not true. You said you weren't quite sure. Page 123. A. Okay, 123. She wants to buy a book we don't need. She has been fighting -- Q. Hold on there, Mr. Brown, if you would, please. A. You're going to read it for me. Good. Go ahead. THE COURT: Mr. Brown, hang on. He'll get a question on the floor. THE WITNESS: Okay. THE COURT: Better not to anticipate what Mr. Gillen is going to do. He'll guide you through this. BY MR. GILLEN: Q. First thing I'd ask you to do, Mr. Brown, is look at line 22 there. There's a question on line 20. That will give you some context. A. But doggone it. What was the thing she wanted to do that caused me to tell her we will get sued? Okay. That's not very helpful. What was the thing she wanted to do that caused me to tell -- can we go to the next page? Q. You can indeed. My question to you is, Mrs. Harkins told you that she thought the book of Pandas was useful because it presented another theory of evolution, is that correct, Mr. Brown? A. I -- okay. Reading this, I do remember that she said she wanted to purchase it as a supplemental text. That has come back to me, yes. My memory is not the world's best. Q. If you look at page 123, line 7? A. You're going to do this to me again. Line 7. Okay. Apparently, I remembered it then. She said it presented another theory of evolution. Fine. There it is. I said it. I must have remembered it then. And again, this is how memories work. Sometimes they need jogging. I'm sorry. Q. Understood. But your testimony that day was truthful and accurate, to the best of your knowledge? A. Yes. It is today, too. It may not seem that way, but it is. Q. And during this conversation, you told Mrs. Harkins that you believed that Mr. Buckingham's comments had poisoned the well, so to speak, is that correct? A. Yes, I did use the phrase poisoned. Q. Mrs. Harkins told you, Bill isn't the whole board? A. Yes, she did say that. Q. In that way, she echoed the same sentiments you expressed to Mr. Pell in 2004 when the Biology text was discussed, is that correct? A. I guess you could put it that way, yes. Q. Now subsequently, Dr. Nilsen told the board that the teachers had agreed to use the -- to have the book placed in the classroom as a reference text, is that correct, Mr. Brown? A. Yes, that was -- in fact, it was carried in the local papers when they made that statement. Q. And at the time, it was regarded as a reasonable resolution of -- A. We got accolades from both papers for having reached a compromise acceptable to all sides, yes. Q. Now there's been testimony concerning the October 18th, 2004, board meeting at which the board adopted the curriculum at issue in this litigation. And I want to ask you, do you recall, as you sit here today, Mr. Bonsell calling you prior to that meeting? A. Okay. Mr. Bonsell -- all right. I don't recall Mr. Bonsell calling. I remember my wife telling me that Mr. Bonsell had called and wanted me to call him back. And I remember thinking -- well, I asked her why. And one of the things she brought up was, well, Alan asked whether you supported voting for Sheila Harkins for president or voting for him for a second consecutive term as president. I was like, I do not want to get into this. And also, I had been over to his house not too long ago -- not too long prior to that to look at an electrical job that he had coming up, and that was also an issue. There were a couple of issues. Nothing was, you know, I don't recall that there was anything in there that would really be pertinent to this issue, but then I didn't recall Sheila saying that it presented another theory of evolution, did I? So I don't know how good my memory is. But these are the things I'm remembering as I say this. I remember it was about the upcoming election for board president when I did not want to get into it. It was about an electrical job. And at this point, Casey and I were both seriously considering resigning the board, and I thought, if I'm quitting the board, I do not want to be in Alan's house. That would just be too creepy for me. I couldn't deal with it. At any rate, I did not call him back, no. Q. You didn't call him back, correct? A. I did not call him back. Q. So you don't really know why he called you, do you? A. Other than what my wife told me, no. Q. Now you said that during the discussion at the October 18th, 2004, board meeting, the teachers took the position that they did not teach origins of life, correct? A. Yes. Q. And you've testified that there was a question posed by the teachers concerning whether the change to the curriculum would require them to teach origins of life, correct? A. They didn't pose it as a question. They flat out stated that it was their opinion that, by placing it in the instructional curriculum, they were -- I believe they used the word compelled -- compelled to teach it. Q. And Mr. Bonsell said, we are not going to require you to teach it, correct? A. I don't remember -- I can't say he didn't. I remember Heather Geesey definitely, and I believe Mr. Buckingham. I don't recall Alan saying it, but he may have. I don't remember. Q. You remember Mr. Buckingham saying, we're not going to require you to teach it, correct? A. I'm pretty certain he did, yes. I'm absolutely certain of Mrs. Geesey. She said it more than once. Q. And your testimony here today is that you moved the note onto the board curriculum version for the purpose of ensuring that the teachers would not be required to teach origins of life? A. Yes. Q. And when you did that, it was your understanding that intelligent design addressess the origins of life? A. I would have to say that intelligent design doesn't really address much but the origins of life. That's my understanding of it. Q. And so your purpose was, by appending the note, as you recall, to the curriculum, your goal was to ensure that, on the one hand, it was referenced in the curriculum, and on the other hand, teachers would not be required to teach it, is that correct? A. I wasn't absolutely certain it would -- the truth of the matter is, the board can always change their motion. But my intention at the time was to put that up as a firewall in case it ever came up in the future, that you would have that safeguard, because quite frankly, I didn't -- by that point in time, I did not take Mr. Buckingham's word for anything anymore. Q. So in so doing, Mr. Brown, the net result was to ensure that students would be made aware of intelligent design, but it would not be taught, is that correct? That was your goal? A. No, that was not my goal. My goal was that we drop the subject completely. This was what I viewed at the time as at least something to prevent it being taught. I would not say my goal was to make them aware of it. At that point, I didn't want anything to do with it. My goal would have been for the -- to convince a couple of board members, or even one to be exact, to vote against the motion altogether. That would have been my real goal. Q. One of the objections you had is that you thought the curriculum change would complicate contract negotiations with the teachers? A. Yes. As a school board member, I viewed the teachers' contract as vastly more important than what we said in biology class. All politics is local. Q. I wanted to take an opportunity to show you something, Mr. Brown. Just if you would -- may I approach, Your Honor? THE COURT: You may. BY MR. GILLEN: Q. I misspoke, Mr. Brown. 64, please. A. I was going to say, this is after I was off the board. This isn't going to be much help. Q. It's not going to be that easy. I'm sorry, Your Honor, this is not more high tech, but this is Defendant's Exhibit 65 -- 64. A. Okay. This would be the agenda for that night. What specifically, because this is basically what came in our board packet that night? Q. Good question, Mr. Brown. If you page through Exhibit 64, you'll see in the lower right-hand corner, page stamp numbers. I'd ask you to turn to the page of Exhibit 64 that has the number 159 stamped in the lower right-hand corner. A. My goodness. Either I remembered -- okay. I stand corrected. I thought I had made that motion. I had suggested it. And I honestly thought that I had, you know, that I had made the motion. It says here, Mr. Bonsell offered the amendment. I seconded it. Q. That's what I wanted to ask you, Mr. Brown. Not taking anything away from you. A. I remember making -- suggesting that we could do that, and it just followed in my mind that I had actually made the motion. I'm sorry. I'm trying to take it away from Alan here. Sorry. Q. For the record, we're referring to that portion of Exhibit 64, page stamped 159, with the number 6, correct, Mr. Brown? A. Yes. Q. It's the heading 6, and it says, Mr. Bonsell offered an amendment, which was seconded by Mr. Brown to add the note from Exhibit X1C as follows, the origin of life is not taught to Exhibit X1A planned instruction curriculum guide, correct? A. Yes. Q. And if you look down that page, Mr. Brown, I believe it will indicate that that motion passed unanimously? A. Okay. Yeah. Q. Do you see that? A. Yeah. Q. Am I correct? A. Yes. Q. Thank you. A. I am sorry. I've been hogging credit for introducing that motion. I honestly thought I had because I had proposed that we do that when they kept saying, we don't want to talk -- but the actual motion, no, it wasn't mine. Q. So on the actual night of the curriculum change when it was being contemplated by the board, you suggested a change that was designed to ensure the teachers' concerns were laid and the attendum to the curriculum would ensure that they didn't have to change origins of life? A. Right. Q. Intelligent design, correct? A. I did not state this. This is only what I was thinking when I proposed it. I'm not going to say Alan was thinking the same way I was. I have no idea. But Alan did indeed propose it, and I seconded it, and there it is. And that is my mistake. I am sorry. Q. That's quite all right. There's nothing to be sorry for. No further questions, Your Honor. MR. HARVEY: Just a couple questions, Your Honor. REDIRECT EXAMINATION BY MR. HARVEY: Q. Mr. Brown, please take a moment to look at what is in your notebook and marked as P-21? A. This same book? MR. HARVEY: Can I help him, Your Honor? THE COURT: You may. You may approach. THE WITNESS: Oh, please. I need all I can get. All right. This book? I got more material up here -- yes. All right. BY MR. HARVEY: Q. Is this the document that you looked at that refreshed your recollection -- A. Yes. Q. -- about what Mr. Bonsell said at the board retreat on January the 9th of 2002? A. Yes. Q. And did you see this document that's been marked as P-21 at your deposition that Mr. Gillen took in this case? A. No. No, I did not. Q. Were you aware that it had not even been produced by the Defendants in this case at that time? A. No, I have no knowledge of that whatsoever. Q. Please turn to the next document in here, P-25. A. Yes. Q. Is this the document that you looked at that refreshed your recollection about what Mr. Bonsell said on March the 26th of 2003, at the board retreat? A. Yes. Q. Were you -- did you see this document at your deposition that Mr. Gillen conducted in May of this year? A. No. Q. Were you aware that it wasn't even produced by the Defendants as of that date? A. Well, I'm aware that it wasn't -- well, it certainly wasn't produced to me. Q. And one final question. I forgot to ask you, what you do for a living? You made a reference to doing an electrical job. So is it safe to conclude you're an electrician? A. I like to think so. I haven't burned any houses down yet. MR. GILLEN: No further questions, Your Honor. THE COURT: Are you sure? MR. GILLEN: Mr. Brown, I find a very interesting character, but I will not question him further today. THE COURT: Mr. Brown, contrary to your worst fears, that ends your testimony, and you may step down. There is an end. We have for Mr. Brown one exhibit that was referred to that I'm aware of. That would be by Mr. Gillen on cross examination. That is D-64, which would be the school board minutes of October 18, '04, and specifically, page 159 within D-64. MR. GILLEN: Your Honor, I move the admission of the entire document. I believe we stipulated to it, didn't we, Eric? MR. ROTHSCHILD: I believe that's right. THE COURT: D-64 then is admitted in its entirely. And we will take the Plaintiffs' next witness. MR. HARVEY: Your Honor, Plaintiffs call for their next witness, Mr. Fred Callahan. THE COURT: All right. Whereupon, FREDERICK B. CALLAHAN having been duly sworn, testified as follows: THE WITNESS: Frederick B. Callahan. F-R-E-D-E-R-I-C-K. B. C-A-L-L-A-H-A-N. THE COURT: You may proceed. DIRECT EXAMINATION BY MR. HARVEY: Q. Mr. Callahan, are you a Plaintiff in this case? A. Yes. Q. Where do you live? A. 2830 Skytop Trail, Dover. Q. Are you married to Aralene Barrie Callahan? A. I am. Q. How long have you lived in Dover? A. 29 years. Q. And we learned about your children when your wife testified. You were in the courtroom at that point? A. Yes. Q. And one of your children is now in the 11th grade at Dover High School, isn't that correct? A. She is. Q. That's your daughter, Katie? A. Yes. Q. Please just tell us briefly what your education is? A. I graduated from West York High School in 1966 and Ursinus College in 1970. Q. And could you please tell us what you do for a living? A. I work for Colony Papers, Incorporated, in York. Q. And what do you do? A. I'm the president of it. Q. And do you recall attending a board meeting of the Dover Area School District on June the 14th of 2004? A. I do. Q. Why did you attend that meeting? A. My wife told me to attend it. Q. Had you previously attended meetings of the Dover Area School District board of directors? A. I had intermittently. I wasn't a regular attender, but I would go periodically. Q. Do you remember the -- whether that meeting had a lot or -- how many people were at that meeting? A. It was quite crowded. Many meetings that I attended were very sparsely attended where you might have 20 people. But the room was really fairly crowded. I'm not much of a very skilled, I don't think, at estimating crowds, but I would say there were at least 100 people there, maybe 150. Q. Do you remember Charlotte Buckingham speaking at that meeting? A. Yes, I do. Q. Was that toward the beginning of the meeting or end of the meeting? A. I think she was the first speaker under public comment. Q. Do you remember what she said? A. It was a -- well, as it was testified to earlier, it was a real religious polemic. It went on for -- I would have guessed, for 15, 20 minutes. It was tantamount to a religious sermon, I would say. Q. Now do you remember Mr. Buckingham making something akin to an apology at that meeting? A. My memory is that he did that just prior to her speaking. There had been a meeting June 7th, and I guess he said some things at that meeting that he felt compelled to address. And he made, I guess what you would say was, an apology. He did not retract anything he said, but he essentially apologized if he hurt anyone's feelings, as I recall. Q. Do you remember Mr. Buckingham saying anything in that meeting about somebody dying 2000 years ago? A. I do. And my memory was that it was in the context of that apology. But I think I testified in my deposition, and I'll stand by the testimony in my deposition, that it would have been in response to something that was said after his wife spoke by someone else. It was, but, yeah, that was sort of a wake-up call. Q. Do you remember -- can you tell us the words or approximate words he said? A. Well, as testified to earlier, and I couldn't swear to the exact wording, but it was, 2000 years ago, a man died on a cross. Shouldn't we stand up for him now? Or something very close to that. Q. Do you remember -- do you know who Bertha Spahr is? A. Yes. Q. Who's Bertha Spahr? A. She is head of the science department, I believe. Q. Do you remember her speaking at that meeting? A. Yes, I do. Q. She spoke in support of the Biology book which had been proposed. She gave it the endorsement of, I guess, the science department. I remember there was a committee or something that she was speaking for. It wasn't just her endorsement. And she said that the committee felt that it handled evolution in a very sensitive way, that it was used widely in the country. I think her words were that it was the most single most widely used book in the country. She made some reference to the minimal number of pages that were devoted to evolution. And then she also made some parting comment about just suggesting to the board that there were certain requirements that she hoped the board wouldn't -- would remember the legal requirements that they had to address as far as the state standards and something of that sort. Q. Did she talk to -- did she say anything about it being illegal to teach creationism? A. Well, again, I don't remember -- I don't recall her exact words, but she gave a cautionary note to the board, which was clearly directed in that vein. And again, I don't remember her exact words, but -- Q. Do you remember if Mr. Buckingham said anything in response? A. He did. It was very -- it was, where did you get your law degree? It was a very short, pointed barb, and it was, as I recall, it was -- and you have to -- she said this with much defense to the board. You know, this was not a -- her comments were done in a very respectful manner. And I thought his rejoinder to her was just a -- I'd have to categorize it as being a very gratuitous slap in the face. As I recall, there was an audible gasp from the crowd. It was just totally uncalled for, I think. Q. Do you remember somebody from Americans United for Separation of Church and State speaking at that meeting? A. Yes. I couldn't tell you the gentleman's name. I don't think I'd recognize him if he was in the courtroom. I remember he was dressed very casually. I can remember sitting there when he worked his way to the microphone. Quite candidly, I was expecting him to -- this is a terrible thing to admit -- but I was expecting him to give an endorsement to the board's actions. I don't know. He just -- his demeanor. Q. Do you remember what he said, not exact words, but approximately what he said? A. He was pretty straight forward. He said he represented the group that you cited, and suggested to the board that the direction they were going as far as pursuing creationism, that his organization, he felt certain, would be seeing them in court if they continued down that path. Q. Now do you remember a Reverend Warren Eshbach speaking? A. I do. Q. Who is Reverend Eshbach? A. He is a -- I understand he's a retired minister, I believe, of the United Church of the Brethren, I believe it is. His son, I came to find, was a teacher in the biology department. I'd have to say, from people that I do know that know him, he's a very well respected member of the community. Q. Do you remember what he said at that meeting? A. He really struck a very conciliatory tone and, I think, coming from a minister, his position was one that, I think, was very interesting and revealing. He felt that the course that the board was following was misguided, that science and faith are two different matters, that science was for the science classroom, and that faith was for church and family, and that there was a difference between the two. And he felt that the board should be mindful of the divide that it was creating in the community, the upset that it was causing, and, you know, the board should remember that it was to serve the entire community. It was a very conciliatory, reaching out sort of message, I thought. Q. Let's turn to a different subject. And that is, let's go forward in time a little bit to October the 18th of 2004. Did you attend a board meeting on that date? A. I did. Q. Did you stay for the whole meeting? A. No, I didn't. Q. Tell us, were there people who spoke during that meeting? A. Yes. Q. And? A. Well, I spoke fairly early on, and then I left. So, yeah. Q. How many people spoke before you? A. I think one or two. And quite honestly, I can't -- they may have been -- I know, I'm certain Reverend Eshbach was either following me in line or he spoke before me. But it was some of the same people, I think, that spoke the night of the 14th. Q. Can you tell us what you said to the board on October the 18th? A. What did I say? There are a couple of points, I guess, I wanted to make. I had been doing some reading in the interim trying to familiarize myself a little bit more with the issues. And I suggested to them that my view, intelligent design clearly strayed into the area of religion, that it was a thinly veiled, very thinly veiled attempt to bring religion into the science classroom, that it met none of the standard criteria for science, you know, that scientific method of discovery, and that it might prove to be a very slippery slope. I can recall suggesting to them that, asking how they were going to handle that discussion. And at this point, I don't think the policy hadn't been written yet where there would be no discussion. But I suggested to them that any discussion outside of the normal religious bounds positing an intelligent designer, the discussion could very easily get to the nature of that intelligent designer, probably make a pretty strong case, that if there is an intelligent designer, the intelligent designer might not be a force for good, it might be a force for evil. There's a tremendous amount of ill that happens in this world. And, you know, were they prepared to get into that kind of discussion in a biology classroom about the nature of this intelligent designer? And I suggested to them, I guess, I don't know if I used these words, but I thought that they were crossing a bright line that should be reserved for science. I also then, I guess, got into the whole issue with the liability potential. I made note of the fact that they had stopped having their solicitor attend meetings. And as Mr. Brown testified to, they were doing all sorts of things that -- to trim the budget. One of the things they had done sometime within the past preceding 24 months is, they stopped having the solicitor come to their board meetings. One of the things I suggested to them was, I thought they were being a penny wise and a pound foolish, that here they were traveling a route that quite potentially was fraught with peril, and they were cutting out field trips to save a few thousand dollars a year. And I just couldn't see the logic in this. And I can recall asking them if they had gotten an opinion from their solicitor. I believe I was told that they had, but they didn't produce any information as far as what that was. And then finally, I had asked Mr. Buckingham, as I recall, because there had been some reports that he had contacted some organization outside of the state and gotten some guarantees of legal support, and I can recall -- how did this go? I said something to the effect, and he wasn't forthcoming at that point, willing to admit that he had contacted anyone. And I made mention of, you know, this California organization that's going to support your -- the school in this legal endeavor. And he jumped in and said, no, they're from Michigan, which I thought was kind of revealing. He wasn't willing to admit it, just, you know, but -- but I asked him if they had anything in writing, if the board had any contractual written document from this organization underwriting the costs. He indicated that they didn't. And at that point, I believe I suggested that, I didn't think the board was fulfilling its fiduciary duties and was violating its oath. And I think at that time, I was told that I was out of order, and there were gavels banging. And I decided that would be a good time to leave. So I did. Q. So you didn't hear anything that happened at the meeting after that? A. No, other than what I read in the paper. MR. HARVEY: May I approach the witness, Your Honor? THE COURT: You may. BY MR. HARVEY: Q. Matt, could you put up P-127? Mr. Callahan, I hand you what has been marked as P-127. It's the newsletter that was sent out by the Dover Area School District on or about February the 5th. Have you seen this before? A. Yes. Q. Did you receive this at your home? A. Yes. Q. And do you recall your reaction to this document? A. Well, again, I thought it was -- there was obviously some cost involved in this. I went to the extent of, between my wife and myself, asking some questions and trying to determine how much the school district spent on sending this out. I think the figure that was reported was $10,000.00. In light of some of the other things I said, I thought this was kind of revealing that the school could come up with a fairly significant amount of money to send this out. The statement itself, I guess, the text of what they were going to, or are reading to the students, I thought was very revealing. It seems to me that they've -- my understanding of Darwin's theory, and I've done some reading. You know, I'm not a scientist. But I guess one of the things that has impelled me to become a Plaintiff is that, Darwin's theory, from what I can determine, is -- well, it's been described to me as not one of the leading theories of science -- MR. MUISE: I object. I believe this is answered in the narrative. I think the question was regarding the newsletter. THE COURT: I think we are getting into a narrative answer. I'll sustain the objection. Why don't you get a question on the floor, Mr. Harvey? BY MR. HARVEY: Q. Let's go to our final line of questions. Mr. Callahan, do you feel that, as a Plaintiff in this case, you've been harmed by the actions of the Dover Area School District and its Board of Directors? A. Yes. Q. And can you tell us how you've been harmed? A. I think it goes to the heart of the complaint. It's a constitutional issue. I'm a tax payer in Dover. I'm a citizen of Dover. I'm a citizen of this country. I think the heart of my complaint, my wife's complaint, is that, this is just thinly veiled religion. There's no question about that in our minds. If you were to substitute where it says, intelligent design, the word, creationism, which, in my mind, it is, there would be no question that this would be a violation of the First Amendment. I've come to accept the fact that we're in the minority view on this. You know, I've read the polls. I think, you know, a lot of people feel that this should be, that this should be in, that it doesn't cross the line. There are a lot of people that don't care. But I do care. It crosses my line. And, you know, I've been -- there have been letters written about the Plaintiffs. We've been called atheists, which we're not. I don't think that matters to the Court, but we're not. We're said to be intolerant of other views. Well, what am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to. I think this is clear what these people have done. And it outrages me. MR. HARVEY: No further questions, Your Honor. THE COURT: All right. Thank you, Mr. Harvey. Cross-examine, Mr. Muise. CROSS EXAMINATION BY MR. MUISE: Q. Good afternoon, Mr. Callahan. A. Good afternoon. Q. I believe you testified that you have a child that's in the 11th grade? A. Yes. Q. Is that your youngest child? A. Yes, she is. Q. And you have a -- other children as well, correct? A. Yes, a son and daughter. Q. And they have moved beyond the Dover Area School District? A. Yes. Q. Now your child that's in the 11th grade was never in the 9th grade biology class when this curriculum was -- since this curriculum has been adopted, is that correct? A. No, she wasn't. Q. So you have children past the point where they will have that statement read to them in the biology class, is that correct? A. Yes. Q. Now, sir, you're a Plaintiff in this case because your wife wanted you to be, correct? A. Well, that's probably overstretching, but family harmony is always important. She certainly didn't have to twist my arm. When this came about, and I was aware of the issues and followed it, and given the opportunity, I said, absolutely, let's do it. Q. I believe, in your deposition, you testified it was her initiative that brought you in as a Plaintiff in this case? A. Yes. Q. I believe you testified, your role, as you stated in your deposition, was to say, quote, yes, okay, honey? A. Well, that was -- I thought that that was relating to going to the meeting on June 14th, but I may be mistaken about that. Q. You said you went to that June 14th meeting at the strong suggestion of your wife, correct? A. Yes, she was out of town and couldn't be there. Q. Now I want to get your -- strike that. You were in court today for the testimony that occurred, correct? In court today, you heard some of the testimony that was given? A. Yes. Q. And there was a lot of testimony about discussions at meetings and various accusations that were made regarding the issues that are essential in this case regarding the policy, correct? A. Yes. Q. Now I want to get your understanding of what though is actually going to be taking place in the 9th grade biology class at Dover High School, okay? Is it your understanding, sir, that Darwin's theory of evolution will be taught pursuant to the state academics standards in the 9th grade biology course at Dover High School? A. Yes. Q. And that is regardless of what was passed on the October 18th resolution? A. Yes. Q. Do you have any objection to the way they're going to teach Darwin's theory of evolution, as you understand it? A. No. Q. Sir, is it your understanding that the school district is a standards driven district, so they have to follow the Pennsylvania State Academic Standards for their curriculum? A. Yes. Q. And is it your understanding that the Pennsylvania State Academic Standards require students to take a standardized test of which evolution is a part? A. Yes. Q. And is it your understanding that the class will focus its time on preparing students for a student based assessment in order to pass those standardized tests? A. Yes. Q. And is it your understanding that that student based assessment does not include material on intelligent design? A. Yes. Q. So the students will not be tested on any aspect or component of intelligent design, correct? A. Correct. Q. Now this June 14th meeting that you went to at the urging of your wife, you discussed some of the controversy that was taking place, the statements and so forth, correct? A. Right. Q. And that was in the context of the adoption of the Biology textbook for this 9th grade biology class? A. It was in the context of the statements that had been made on the 7th, that much of the discussion was related to the possibility that had been raised of including creationism in the curriculum. Q. And that came in the context of adopting a new biology textbook, correct? A. Right. Q. The biology textbook that was being discussed at the June 14th meeting that you were at was the 2002 version of the Miller and Levine Biology book, correct? A. I couldn't tell you which edition it was. Q. Now isn't it true, your wife told you that the biology book that the teachers had recommended was one that was one of the most widely used biology textbooks in the country? A. No, that information was from Bert Spahr. She delivered that in her message to the board that night. Q. But it was your understanding though that this biology textbook was one that was widely used? A. Yeah, well, she said that, I think, in her address to the board. Q. Do you have any reason to doubt her? A. No. Q. It was your understanding that the biology department felt that this was a very appropriate book and would be beneficial for the school to purchase? A. Yes. Q. And again, this book is what created all this controversy and those statements that you had testified to on direct, correct? A. Well -- repeat that question. I'm not sure. Q. I'm sorry for not being so precise. One of the questions I had asked you about the controversy centering on the adoption of a biology text, and I believe you concurred that that was an accurate assessment? A. Well, I think the -- I just want to clarify this and make sure that I'm understood here. I don't think the controversy was on the Miller book. Perhaps from Buckingham's standpoint. The controversy really arose from the standpoint of why the book wasn't being approved, that creationism was being considered. I mean, I think that was the controversy. I don't think there was a tremendous amount of controversy at all really on the part of the public as far as the Miller book itself, the Miller and Levine book. I don't think that's where the controversy really resided. Q. But the connection that you make, and the reason for the controversy, is that it's connected to what was contained in that Miller book? A. No, I don't think the controversy -- well, I guess we're -- maybe we're saying the same thing. I think the controversy was in Buckingham's comments regarding the book and what he wanted to see in the book. There was no controversy that I could detect on the part of the general public on the book itself; maybe that it hadn't been approved, but not relating to the book itself. Q. Is it fair to say that the controversy was related to Mr. Buckingham's objections to that book? A. Yes. Q. Now is it your understanding that the book that was actually adopted and purchased by the school district was the later version of that same book that Mr. Buckingham objected to? A. That's my understanding. Q. So this controversy, which was related to Mr. Buckingham's statements of this book, the result was, that extra book was the one that the school board voted for and spent public money and purchased, correct? A. Right. Q. Sir, is it your understanding that that book, the Biology book covers the theory of evolution consistent with its status in the scientific community? A. No. Actually, I think the message that I gleaned from Bert Spahr's comments was that it was a relatively mild treatment of evolution. And I -- I don't know. You know, if Darwin's theory is the overarching critical theory that it is, you know, maybe we're making -- what I got from it is, we were making an accommodation to people's religious beliefs by the very selection of that book. Q. If Dr. Ken Miller, the author of that book, said that that book represented a theory of evolution consistent with the standing in the scientific community, would you have any reason to doubt that? A. No. He'd certainly know better than I would. But he's selling books in Texas, too. Q. Now the textbook, Of Pandas and People, is it your understanding that that book was actually placed in the library at Dover High School? A. Yes. Q. It was never made a required text for the students? A. Not as it ended up, no. Q. And it was put in the library so that students could look at it if the student chose to do so? A. That was the understanding that I got, yes. Q. Now this statement which was created in conjunction with this policy resolution and adopted on October 18th of 2004, is it your understanding that there was a statement in January, but then it was modified in June? Are you aware of that? A. I had heard some comment about that. Q. Is it your understanding that the statement was modified in June to reflect the fact that Of Pandas and People was put in the library along with other resources addressing intelligent design? A. I believe I heard some commentary about that. Q. Is it your understanding that some of these other resources include books that are highly critical of intelligent design? A. I am not aware of what those books are. Q. Now your wife was a board member at one time, correct? A. She was. Q. And she lost her election in November of 2003? A. Yes. Q. Now when you went to this June 14th, 2004, meeting that you testified about, that was the first time that you heard that term intelligent design, is that correct? A. Possibly. I'm in some doubt as to the first board meeting that I heard that term at. I know it wasn't in common useage at that June 14th meeting. That may have been the first time I heard it. I -- I very well could have heard it at that meeting. It was not a subject -- it wasn't as well understood and hadn't been disseminated to the public at that point as it was by the October 18th meeting. Q. Sir, you testified in your deposition that the first time you were introduced to that term was at that meeting. Would you have any reason to doubt? A. No. Q. At this meeting, Mr. Buckingham didn't speak to the teaching of creationism? A. Pardon me? Q. At this meeting, the June 14th meeting, Mr. Buckingham didn't speak to the teaching of creationism? A. I don't think he did from the standpoint -- well, he may have. I don't recall, because what he said in his opening comments was directed back to what he said on June 7th. And I wasn't at the June 7th meeting, but it was reported, I believe, that he had spoke to it then. I will say that he didn't retract anything. I remember specifically that he did not make any comment in his opening remarks denying what was printed in the paper or negating, you know, any of the information that was published in the media. MR. MUISE: May I approach the witness, Your Honor? THE COURT: You may. BY MR. MUISE: Q. Sir, I'm handing you a copy of your deposition that was given on March 30th of 2005. And I'd ask you, please, to turn to page 23, starting on line 22, and read through line 25, the question, then your answer. A. You want me to read the question? Q. Yes, please? A. How about creationism? Did Buckingham speak to the teaching of creationism or the legality of teaching creationism? I can't say that he did at that meeting. Q. Is that a truthful answer you gave on March 30th, 2005? A. Well, again, I think what I just said doesn't conflict with that. My understanding was that he was -- and having read the papers, and I can't pretend I didn't, I was pretty vigilant about reading the papers. He didn't deny anything that was reported that he had said at the previous meeting. And I think at the previous meeting, it was reported that he did speak about creationism. So did he specifically say that? No, I can't say that he did. But he apologized for hurting people's feelings basically on the 14th. Q. So he didn't speak to the teaching of creationism or the legality of teaching creationism at the meeting you attended? A. I can't recall that he did. I'm not saying that he didn't. I just can't recall. Q. That's something you don't remember? A. No. Q. Sir, we've heard throughout testimony today, and I believe yesterday as well, about a young man by the name of Max Pell who gave some speech at the June 7th meeting, I believe? A. Uh-huh. Q. Is that a yes? A. Yes. Q. Now Max Pell, he's a friend of your son, is that correct? A. Yes. Q. Sir, you were at a meeting in which, at a board meeting in which Mr. Alan Bonsell corrected one of the other board members who used the term creationism in one of their discussions, correct? A. Right. Q. And he interrupted that board member and corrected him and said, we're talking about intelligent design not creationism, correct? A. My memory is, he didn't interrupt him. They had made some brief comment regarding the importance of creationism, and finished their comment, and he said, it's intelligent design. And, you know -- Q. Sir, now the -- your understanding is that the Pandas book was donated to the school, correct? A. That's my understanding. Q. It was announced at a board meeting by Dr. Rich Nilsen? A. I'm not sure I was at the board meeting when he announced that, but I read that in the paper, yes. Q. It was your understanding, sir, that the board was wrestling with what to do with this book, trying to research some sort of a middle ground, is that correct? A. Yes, uh-huh. Q. Is that a yes? A. Yes. I'm sorry. Q. Now the biology department didn't want to use it as a textbook for the class, correct? A. That was my understanding, yes. Q. And the school board and the school ultimately decided just to put the book in the library for students to access it if they wanted to, correct? A. Yes. Q. Sir, apart from those comments that we just discussed with Mr. Bonsell correcting one of the board members who used the term creationism that we just discussed, you've also heard Mr. Bonsell make claims in support of intelligent design as being a scientific theory, correct? A. Yes. Q. When the issue came up regarding intelligent design in the curriculum, Mr. Bonsell was talking about intelligent design as a scientific theory? A. I should say that I, to my recollection, and looking at news articles and adgends, I don't think I attended a meeting between June 14th and October 18th, so much of that discussion, I got through the newspapers. I wasn't there firsthand. Q. But you heard Mr. Bonsell making comments regarding intelligent design as a scientific theory? A. Well, there's a time that I just cited that -- well, actually, he didn't make a comment. I mean, he just corrected the speaker. I don't recall what his comment was or whether he, in fact, made any comment about it at the time. Q. Sir, if you would turn to your deposition, page 40, please? A. Okay. Q. If you will read starting from line 24 on page 40 and continuing onto page 41 down to line 6? A. I'm sorry. What line do you want me to start? Q. I'm sorry, page 40, line 24? A. Okay. I see what you are inferring there. What about Alan Bonsell? When that issue came up about incorporating intelligent design into the curriculum, did he speak to that specifically? His purpose? What was he after? Q. Then your answer? A. I think Alan was much more in message as far as staying on the intelligent design and alternate scientific theory. I think he was much more disciplined in his remarks. Q. Was that a truthful answer you gave, sir? A. Yes, but I don't -- I did answer truthfully, as far as I recall, but I don't -- I do remember that meeting where -- and that was my point, I think, that I was making, was that he was -- he struck me as that one incident where he just, you know, wanted to make clear he was talking about intelligent design. Q. Now, sir, your objections to intelligent design are based on your impression that intelligent design is religion, that it's talking about God, is that correct? A. Yes, absolutely. Q. And I think you indicated that it's sort of a euphemism for God, is that correct? A. Yes. Q. Is your opinion based on your impression that intelligent design requires the action of a supernatural creator? A. Yes, very much. Q. Sir, if you were shown that intelligent design does not require the action of a supernatural creator and that it was based on empirical observable facts about biology, would you be willing to change your opinion? A. Yes, if it followed the normal methodology that has been established for every other scientific theory, the rigors that they have to follow to be accepted by the scientific community, you know, I see no reason why not to accept it. But -- Q. In your judgment, would that be relying on empirical observable facts about biology to support your theory? A. I am not a scientist. If, if there are issues that intelligent design puts forth that follow all the established dictates of the scientific and biology communities and are accepted by the scholars, if you will, in the field, why wouldn't they be accepted? Q. Now, sir, I believe you said it was the June 14th meeting when a member from the Americans United for Separation of Church and State had threatened legal action against the school board? A. Yes. Q. And you said you spoke to the school board about liability issues, about the potential for getting sued? A. Well, I didn't speak at that meeting. Q. There was at least one meeting that you addressed the school board? A. That was the October 18th meeting. Q. So now you're a Plaintiff in this case? A. Yes. Q. Sort of self-fulfilling prophecy? A. If you will, I guess it is. Q. Sir, you testified about the newsletter that you received from the school district explaining the actions that they had taken regarding the curriculum change, correct? A. Yes. Q. And in that newsletter, it also had an article from Senator Santorum indicating his support for the what the school district had done? A. Right. Q. Now isn't it true that the school district sends out four newsletters a year as far as their routine business? A. I have no idea. They may do that. I get a lot of mail at home, and I don't look at every piece. Q. I believe, when you were testifying about harm, there was some letters that had been written, I guess, derogatory towards the Plaintiffs, in your perception? A. There have been many letters, columns. Q. Any of those letters by board members? A. I think so. I couldn't tell you specifically. There have been a tremendous number of letters in the York press, letters about the issue. Q. Letters about the issue? A. Um-hum. Q. Is that a yes? A. Yes. Q. These meetings that you were testifying to, I believe you indicated, there were large crowds? A. Yeah. The 14th was more. I think it was actually more crowded than the 18th of October. But, yeah. Q. Is it fair to say, the crowd interaction created sort of a frenzy atmosphere at these meetings? A. Well, I don't know if frenzy -- well, you know, that's a subjective term. I guess, to some, it would be possibly frenzy. At times, it was, you know, ooh's and aah's. And, you know, it was certainly a meeting that would not put you to sleep. Q. And at the June 14th meeting, I believe you testified on direct, that Mr. Buckingham read a statement? A. It was -- it's my memory that he read it. It was a short statement. And my recollection is that he -- it pretty much opened the meeting before public comment. Q. It's your understanding this was an effort on his part to try to make some peace? A. Yes, sir. MR. MUISE: No further questions, Your Honor. THE COURT: Any redirect? MR. HARVEY: No, Your Honor. THE COURT: Mr. Callahan, we thank you. You may step down. That takes us, I think, comfortably to the end of our planned trial day. Counsel, do you have anything else before we adjourn? MR. HARVEY: No, Your Honor. P-137 is in evidence. MR. GILLEN: No, Your Honor. Thank you. THE COURT: All right. I'll remind everyone, we will start our day at 12:30 p.m. tomorrow and have what, I think, promises to be a somewhat abbreviated afternoon session at that time. With that, we will wish you all a pleasant good evening, and we'll be in recess until 12:30 tomorrow. Thank you all. (Whereupon, the proceeding adjourned at 4:58 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 5 (September 30), PM Session, Part 1 THE COURT: We convene for our somewhat, as I understand it, abbreviated Friday afternoon session. And we are still on the plaintiffs' case. MR. WILCOX: Your Honor, I'm Alfred Wilcox from Pepper Hamilton, LLP, and I'd like to call the plaintiffs' next, John Haught. THE COURT: Nice to see you, Mr. Wilcox. I've seen you but not in that chair. You may proceed. JOHN F. HAUGHT, PH.D., called as a witness, having been duly sworn or affirmed, testified as follows: THE CLERK: If you'll state your name and spell your name for the record, please. THE WITNESS: John F. Haught, H-a-u-g-h-t. DIRECT EXAMINATION BY MR. WILCOX: Q. Professor Haught, are you married? A. Yes, I am. Q. Where do you live? A. I live in Falls Church, Virginia. Q. Do you have any children? A. I have two boys. Q. I understand you are officially retired now? A. I'm officially retired. Q. When did you officially retire? A. At the beginning of this year. Q. Do you have a current CV? A. Yes, I do. MR. WILCOX: May I approach the witness, Your Honor? THE COURT: You may. BY MR. WILCOX: Q. Professor Haught, I show you what's been marked as Plaintiffs' Exhibit P315. Is that a copy of your current CV? A. Yes, it is. Q. Your qualifications to testify as an expert in this case have already been stipulated to, but I'd like to just spend a few minutes calling out some highlights in your career for the Court. Am I correct that you received your Ph.D. from Catholic University in 1970? A. Yes. Q. And what was that in? A. In theology. Q. And have you been teaching and writing about theology ever since? A. Yes, I have. Q. You rose from being an instructor in theology at Georgetown University to being chair of the Theology Department? A. Yes, I did. Q. When was that that you became chair? A. In 1990 through '95. Q. And your CV contains a list of the various books that you have published. How many books have you published overall? A. 13. Q. Of those 13, some of them deal generally with the subject of science and religion. Is that correct? A. That's correct. Q. And some of them deal specifically with the subject of evolution and religion. Is that correct? A. Yes. Three of my books deal explicitly with evolution and religion. Q. I'm holding up -- and we're not going to mark this at this point -- a book titled, God After Darwin, by John F. Haught. Is that one of yours that deals specifically with evolution and religion? A. It deals with evolution and theology. Q. And a book called, Deeper Than Darwin. Is that another of -- A. That's a sequel to God After Darwin. Q. And a paperback, Responses to 101 Questions on God and Evolution? A. Yes. Q. The title is apt? A. That's apt. Q. And I'm holding up some others, one called, The Cosmic Adventure: Science, Religion and the Quest for Purpose. A. Yes. Q. Is that a broader -- A. That's a broader discussion, includes evolution but goes beyond it, as well. Q. And one, Science and Religion: In Search of Cosmic Purpose? A. That's a book that I edited. Q. Science and Religion: From Conflict to Conversation? A. That's an introductory text for college and intelligent laypeople on science and religion. Q. In either your classroom work or your academic writing have you encountered the notion of intelligent design? A. Yes, I have. Q. Are you familiar with the writings of intelligent design proponents? A. Yes, I am. Q. And have you heard them speak on the subject of intelligent design? A. I have, yes. Q. In your opinion, is intelligent design a religious proposition or a scientific proposition? A. It's essentially a religious proposition. Q. We're going to spend the rest of our time together exploring your reasons for that opinion. What do you understand intelligent design to be? A. I understand it to be a reformulation of an old theological argument for the existence of God, an argument that unfolds in the form of a syllogism, the major premise of which is wherever there is complex design, there has to be some intelligent designer. The minor premise is that nature exhibits complex design. The conclusion, therefore, nature must have an intelligent designer. Q. You said this is an old tradition. Can you trace the antecedence for us? A. Well, two landmarks are Thomas Aquinas and William Paley. Thomas Aquinas was a famous theologian/philosopher who lived in the 13th Century. And one of his claims to fame is that he formulated what are called the five ways to prove the existence of God, one of which was to argue from the design and complexity and order and pattern in the universe to the existence of an ultimate intelligent designer. The second landmark -- incidentally, Thomas Aquinas ended every one of his five arguments by saying that this being, this ultimate, everyone understands to be God. And William Paley, in the late 18th and early 19th Century, is famous for formulating the famous watchmaker argument, according to which, just as you open up a watch and find there intricate design and that should lead you to postulate the existence of a watchmaker, so also the intricate design and pattern in nature should lead one to posit the existence of an intelligent being that's responsible for the existence of design and pattern in nature. And like Aquinas, William Paley also said to the effect that everyone understands this to be the God of biblical theism, the creator God of biblical religion. Q. How does intelligent design build upon or modernize this old tradition of natural theology? A. Well, it simply appeals to more recent findings about the complexity of the world by contemporary science, for example, what are called irreducible complexity and specified informational complexity. The irreducible complexity idea that the intelligent design proponents, especially Michael Behe, use refers to the subcellular intricacy that's been made available by the electron microscope since the 1950s and also such things as blood clotting mechanisms, immune systems, and so forth. And then more recently William Dembski, especially, has talked about how the specified informational complexity in the DNA at the nucleus of cells consists of a specific sequence of nucleotides which form a recipe or a template for the design of the organism as a whole. Q. It may be possible, if you drop that microphone down a bit, that the "P" sound won't be as pronounced here. With us? Does intelligent design identify the designer as God? A. Intelligent design proponents stop short of identifying the intelligent designer as God, but I would say that the structure and history of Western thought, especially religious thought as such, that most readers, if not all, will immediately identify this intelligent agent with the deity of theistic that is biblically-based religion. Q. Does intelligent design resemble creation science from the 1960s and 1970s in America? A. Well, both creation science and intelligent design argue that the intelligence that runs the universe, that guides the universe, is something that has to be brought down to the level of scientific explanation. They both deny that natural causes alone can bring about the complexity of life, so what they share is the tendency to bring into scientific discourse a category which I don't think belongs there, namely intelligent design, to make up for what seems impossible for nature to bring about by itself. And they also share the idea of what's called "special creation," according to which the intelligent designer or the creator intervenes from time to time to bring about specifically new and distinct species of life, which could not have come about for them by common descent but had to be created individually by ad hoc acts of the deity. Q. Have you read parts of or all of Of Pandas and People? A. I've read parts of it. Q. At Page 85 -- this is P11, Your Honor, Exhibit P11. At Page 85, Pandas and People is talking about an analogy drawn on the structure of DNA and says, "This strong analogy leads to the conclusion that life itself owes its origin to a master intellect." Is that consistent with the explanation you've just been giving about -- A. Yes, it is. Q. And you reference the concept of special creation. Starting at Page 99 and going over to Page 100, the text of Pandas and People says, quote, Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already in tact: fish with fins and scales, birds with feathers, beaks, and wings, et cetera. Is that an example of special creation? A. It's a very good example of what special creation means. Q. Is intelligent design in any way different from creation science? A. Intelligent design stops short of explicitly identifying the intelligent designer with the Creator. And also, in my opinion, in my reading of intelligent design works, I would say that on the average, they are less biblically literalists in their interpretation of Scripture than those who call themselves creation scientists. But substantively they're very much the same. Q. I'd like to shift gears, and we've talked about intelligent design. Now let's talk about what makes the subject religion or religious. In your report that you've submitted here, you identified three characteristics or qualities where you equate with religion or religious. The first of those is a devotion to an ultimate in importance and explanatory power. Could you tell us what you mean by that? A. Well, there are different levels of explanation. Science, I believe, works with near at hand, available, observable natural explanations, but the human mind also looks for ultimate explanations. And it's at the level of ultimate explanations that the -- what we call theological discourse is appropriately located. Q. Pandas -- we referred just a minute ago to a quote from Pandas where it refers to a master intellect. Is that consistent with this notion of ultimate? A. Yes. Clearly the notion of a master intellect, which assumes that we can't go any further than the master intellect, fits in the category of ultimate explanation, as well as ultimate in the order of being. Q. I'd like to quote again from Pandas, Page 6. Quote, In the world around us, we see two classes of things, natural objects like rivers and mountains and manmade structures like houses and computers. To put it in the context of origins, we see things resulting from two kinds of causes, natural and intelligent. Does this shed light on whether Pandas is religious in the sense we've just been talking about? A. Yes, it does. If there are only two kinds of causes, natural causes and intelligent causes, then that implies logically that intelligent causes are not natural causes. And I don't know where else one would logically locate the intelligent causes except in the space of an ultimate explanation. Q. Another of your definitions of "religious" is as a reference to a mystery that unfolds the ordinary world but is not fully accessible to the senses of those of us in that ordinary world. Does Pandas reveal whether intelligent design is religious in that second sense, as well? A. If I could refer to a quotation here. The authors of Pandas and People ask this question: "What kind of intelligent agent was it?" And then it goes on to say, the book goes on to say, "On its own, science cannot answer this question. It must leave it to religion and philosophy." So that would lead one to conclude that only a religious explanation is going to give a complete explanation of life. MR. WILCOX: For the record, Your Honor, that quote was from Page 7 of P11. BY MR. WILCOX: Q. A third definition of religion you articulate in your report is Western cultural theism or a belief in a God who is good, powerful, and intelligent. At the risk of belaboring the point, does Pandas shed any light on whether intelligent design meets this definition of religion? A. Yes. The very idea of intelligence implies that it resides somehow within a being that is at least personal. And in the case of theistic religion, God is seen as personal, so it's just automatic and logical that one would identify this intelligent agent with the personal God, creator God, transcendent God, all good, all beneficent God of Christian and biblical theism. Q. For intelligent design to be coherent or intelligible, does it require a particular religious world-view? A. In my view, the way in which intelligent design is used in the discourse that's in dispute, it does entail an essentially biblical and specifically Christian view of the world and an ultimate intelligence, ultimate reality. Q. Do you have any information as to whether the leading proponents of intelligent design are themselves deeply Christian? A. In my experience -- and I've read quite a few of them -- I see no exceptions to what I take to be the fact that all of them are deeply religious people, deeply committed to the cause of the survival of Western theism, and I see this as one of the motivating factors behind the whole movement. Q. Has your study of intelligent design acquainted you with the motivations of its leading proponents? A. Yes. Q. What have you observed? A. Well, I've observed that, again, without exception, their objective seems to me to get at the heart of what they consider to be the source of moral and spiritual decay. And they do this by using a strategic tool or what they call a Wedge to combat the materialistic world-view which they consider to be inextricably connected to a Darwinian way of looking at life or, more generally, to an evolutionary biological way of looking at life. Q. And by a materialist world-view or belief system, what does that mean? A. Materialism is a belief system that claims that matter, lifeless and mindless matter, is the ultimate foundation of all reality, and there's nothing more ultimate than that. So it's kind of religious in the first sense of my term, a belief in something of ultimate importance. For the materialist, matter is the ultimate creator, the ultimate source of all being, and therefore it excludes the existence of anything supernatural, certainly the existence of God. Q. Are you familiar with the work of William Dembski? A. Yes, I am. Q. Who is he? A. William Dembski is a leading proponent of the intelligent design movement, if you want to call it that. He's one of the top two or three spokespersons for intelligent design today. Q. Are you familiar with his introductory essay in the book Mere Creation? A. Yes, I am. MR. WILCOX: For the record Your Honor, that's Exhibit P340. BY MR. WILCOX: Q. Does Dr. Dembski's essay shed any light on the question whether intelligent design is conceived of as essentially a religious proposition? A. Yes, it's very interesting what he says in this introduction to this very important book in intelligent design thinking. And I'd like to quote this, because I think it's very important. He says that one prong of the intelligent design program is, quote, a sustained theological investigation that connects the intelligence inferred by intelligent design with the God of Scripture. And after reading that, I don't think one could have any doubt as to what is really going on here, namely an attempt to promote a biblically theistic way of looking at reality. MR. WILCOX: For the record, Your Honor, that's from Page 29 of P340. THE COURT: Very well. BY MR. WILCOX: Q. Let's shift gears again and talk about what you understand science is. MR. THOMPSON: Objection, Your Honor. There's no foundation that he is an expert in science. THE COURT: Well, let's have a question, and then we'll see what the point of the inquiry is. MR. WILCOX: Specifically, I want to focus on the natural sciences. BY MR. WILCOX: Q. What is your understanding of science? A. I might just say -- MR. THOMPSON: Objection, Your Honor. He is not a scientist, nor is he a philosopher of science, nor is he a historian of science. And we are now getting into the field of Professor Haught telling us what's science. His only purpose here was to talk about religion and its impact on the intelligent design theory. THE COURT: Are you saying it's outside of the four corners of his report? MR. THOMPSON: I can't say that because I haven't -- THE COURT: Well, that's what the objection has to be, I think. And if it's within his report and you had notice and you stipulated as to his credentials, then I think he's going to be able to testify to it. Now, if you want to look at it, I'll give you a moment to do that. MR. THOMPSON: Thank you, Your Honor. THE COURT: I don't want to do it under duress, so let's take a moment and have you take a look and see if you want to base an objection on the report. And if there is an objection, I'm going to need a copy of the report or be pointed to the exhibit number so that I have it. MR. THOMPSON: I saw a comment about science, Your Honor, on the report, so I'll withdraw my objection. THE COURT: You certainly have an objection if it goes beyond that. Then I'll consider the objection with regard to that extent. MR. THOMPSON: Thank you. THE COURT: And you may proceed. You probably should restate, I guess, the question. Do you want it read back, or do you want to restate it, Counsel? MR. WILCOX: I'll restate it. THE COURT: All right. BY MR. WILCOX: Q. Focusing on natural science, what is science? A. Science is a mode of inquiry that looks to understand natural phenomena by looking for their natural causes, efficient and material causes. It does this by first gathering data observationally or empirically. Then it organizes this data into the form of hypotheses or theories. And then, thirdly, it continually tests the authenticity of these hypotheses and theories against new data that might come in and perhaps occasionally bring about the revision of the hypothesis or theory. Q. You said that science seeks to understand the natural world through natural explanations. Is that important? A. Yes, that's critical. The science, by definition, limits itself self-consciously, methodologically, to natural explanations. And that means that anything like a supernatural reality or transcendent reality, science is simply not wired to pick up any signals of it, and therefore any reference to the supernatural simply cannot be part of scientific discourse. And this is the way that science carries on to our present day. Q. Would that mean this is the way modern science is conducted? A. Modern science we date from roughly the end of the 16th to the 17th Century, in that period of time. And it was at that time that the great figurists of modern science, almost all of whom were deeply religious men themselves, decided self-consciously that this new mode of inquiry would not appeal to anything that's not natural, would not appeal to things like value, importance, divine causation, or even anything like intelligent causation. These are not scientific categories of explanation. And ever since the 16th and 17th Century, modern science, as it's called, leaves out anything that has to do with theological or ultimate explanation. Q. Who are some of the leading figures in the development of modern science? A. Well, we can go back to Copernicus. And, of course, the figure that for me stands out is Galileo. And Galileo is important because he told his accusers, his ecclesiastical accusers, that we should never look for scientific information in Scripture, we should never look for scientific information in any theological source. So he placed science on the foundation of experience rather than authority or philosophical coherence. From thence forth to this day, science is a discipline where testability is the criterion of its worth. Q. Does this make science at odds with religion? A. By no means. Science and religion, as I've written in all of my books, are dealing with two completely different or distinct realms. They can be related, science and religion, but, first of all, they have to be distinguished. The medieval philosopher said, we distinguish in order to relate. And when we have a failure to distinguish science from religion, then confusion will follow. So science deals with questions relating to natural causes, to efficient and material causes, if you want to use Aristotelian language. Religion and theology deal with questions about ultimate meaning and ultimate purpose. To put it very simply, science deals with causes, religion deals with meanings. Science asks "how" questions, religion asks "why" questions. And it's because they're doing different things that they cannot logically stand in a competitive relationship with each other any more than, say, a baseball game or a baseball player or a good move in baseball can conflict with a good move in chess. They're different games, if you want to use that analogy, playing by different rules. Q. You've used another analogy in discussions with me that might be illuminating. This is the boiling water analogy. Could you give us that? A. Yes. I think most of the issues in science and religion discussions, most of the confusion that occurs happens because we fail to distinguish different levels of explanation. And so what I advocate is layered or -- layered explanation or explanatory pluralism, according to which almost every phenomenon in our experience can be explained at a plurality of levels. And a simple example would be a teapot. Suppose a teapot is boiling on your stove and someone comes into the room and says, explain to me why that's boiling. Well, one explanation would be it's boiling because the water molecules are moving around excitedly and the liquid state is being transformed into gas. But at the same time you could just as easily have answered that question by saying, it's boiling because my wife turned the gas on. Or you could also answer that same question by saying it's boiling because I want tea. All three answers are right, but they don't conflict with each other because they're working at different levels. Science works at one level of investigation, religion at another. And it would be a mistake to say that the teapot is boiling because I turned the gas on rather than because the molecules are moving around. It would be a mistake to say the teapot is boiling because of molecular movement rather than because I want tea. No, you can have a plurality of levels of explanation. But the problems occur when one assumes that there's only one level. And if I could apply this analogy to the present case, it seems to me that the intelligent design proponents are assuming that there's only one authoritative level of inquiry, namely the scientific, which is, of course, a very authoritative way of looking at things. And they're trying to ram their ultimate kind of explanation, intelligent design, into that level of explanation, which is culturally very authoritative today, namely the scientific. And for that reason, science, scientists justifiably object because implicitly they're accepting what I'm calling this explanatory pluralism or layered explanation where you don't bring in "I want tea" while you're studying the molecular movement in the kettle. So it's a logical confusion that we have going here. Q. I think you may have already explained this, but just to be sure we see how it connects, one hears it said that it's important to, quote, teach the controversy, unquote. Do you agree with that? A. Well, there really is no controversy between evolutionary biology and intelligent design because intelligent design simply is not a scientific idea. To come back to my analogy, it simply doesn't fall on the same level of inquiry. But if there is a controversy at all, it's a controversy between two groups of people, scientists who rightly demand that intelligent design be excluded from scientific inquiry and intelligent design proponents who want it to be part of scientific inquiry. And I also think that it's certainly appropriate in high school classes or wherever for people to talk about the controversy. To talk about what's going on at this trial, for example, would be a good topic for a civics class or a social science class or a cultural history class or something like that. But certainly there is no controversy, logically speaking, between intelligent design and evolutionary biology because intelligent design, just to repeat, is simply not a scientific idea. Q. Does that mean intelligent design doesn't belong in a biology class? A. Yes. Q. In your report, you refer to the logical and rhetorical respect in which intelligent design is revealed as religious. Could you -- A. Yes. By "rhetorical," I mean persuasive. I think what I see happening is intelligent design proponents are trying to persuade students and the public that intelligent design is something that should be part of scientific discourse. But rhetoric is not necessarily logical, and the whole foundation of that rhetoric is a logical confusion or alloy of proximate explanations with ultimate explanations, and that's what makes the rhetoric suspicious. Q. You've said several times that you regard intelligent design as being religious or rooted in religion. Is intelligent design reflective of any particular religion? A. I see it, at least as it's being used in this discussion, as reflective of the old natural theology tradition of classic Christianity with its postulation of an ultimate transcendent, all good, beneficent, all powerful creator God. Q. You have called intelligent design appalling theology. Can you explain that? A. Well, I think most people will instinctively identify the intelligent designer with the God of theism, but all the great theologians -- there are theologians that I consider great, people like Karl Barth, Paul Tillich, Langdon Gilkey, Karl Rahner -- would see what's going on in the intelligent design proposal, from a theological point of view, is the attempt to bring the ultimate and the infinite down in a belittling way into the continuum of natural causes as one finite cause among others. And anytime, from a theological point of view, you try to have the infinite become squeezed into the category of the finite, that's known as idolatry. So it's religiously, as well as theologically, offensive to what I consider the best theologians, for example, of the 20th Century. Q. These theologians you've just named, are they Catholic theologians like yourself? A. Karl Barth is probably the most important Protestant theologian of the 20th Century. Paul Tillich is a close second or third. Karl Rahner is the most important Catholic theologian of the 20th Century. Langdon Gilkey, who taught at Georgetown with me, testified in the Arkansas creation trial in a way very similar to the ideas that I'm expressing here. Q. Did Pope John Paul, II, express a view on evolution? A. Yes. In 1996, he wrote a statement, an authoritative statement, saying that the Catholic thought is by no means opposed to evolutionary science. Indeed, he says that it seems now that the evidence for evolution is quite convincing, that evolution is more than a hypothesis, it's more than a guess. It's based in sound scientific research. He only cautioned that we should not associate the philosophy of materialism, which I was talking about earlier, with evolutionary science, we should keep them distinct, which is, of course, from my point of view theologically, very, very sound advice. Q. Is the materialist world-view a scientific conclusion? A. No, materialism is a belief system, no less a belief system than is intelligent design. And as such, it has absolutely no place in the classroom, and teachers of evolution should not lead their students craftily or explicitly to have to embrace -- to feel that they have to embrace a materialistic world-view in order to make sense of evolution. Evolutionary science can be disengaged from ideologies of all sorts, and that's the way evolution should be taught. So materialism, to answer your question, has absolutely no place in the classroom. Q. You concluded your report with an observation that if a child of yours were attending a school where the teachers or administrators propose that students should consider intelligent design as an alternative to evolution, you would be offended religiously, as well as intellectually. Could you explain that? A. Yes. Let me talk first about intellectually. What I mean by that is that I would want a child of mine, in a science class, to really feel and experience the adventure of open-ended scientific discovery, the sense that there's an exhilarating horizon of new discovery up ahead and that the world is open to endless and indefinite scientific scrutiny and inquiry. I think that adventure is extremely important educationally, pedagogically. But the moment you bring in a category like intelligent design into scientific discourse, it functions, it seems to me, as a science stopper. In a sense, it can give the child the impression, student the impression, that, well, why should I bother exploring in detail what's going on in life if it's all going to come down to an intelligent designer did it? So it kind of suppresses, it suffocates, I think, the scientific spirit intellectually. Theologically, I think it's inevitable that a student or certainly a child of mine -- and I think this is true of most students in our culture -- when they hear this term "master intelligence" or "intelligent designer" are instinctively going to identify this with the God of their religious education. But, again, from a theological point of view, to me, this is way too small a God, at least as far as the religious education of my children would be concerned. The God of intelligent design seems to be -- or gives the impression to a religiously sensitive kid or student of being a kind of tinkerer or meddler who makes ad hoc adjustments to the creation, whereas what I would want a child of mine to think of when he or she thinks of God is something much more generous, much more expansive, a God who can make a universe which is, from the start, resourceful enough to unfold from within itself in a natural way all the extravagant beauty and evolutionary diversity that, in fact, has happened. To put it very simply, a God who is able to make a universe that can somehow make itself is much more impressive religiously than a God who has to keep tinkering with the creation. So both intellectually and religiously I find it extremely problematic, intelligent design. MR. WILCOX: Thank you, sir. No further questions. THE COURT: All right. Thank you, Mr. Wilcox. Mr. Thompson, cross-examine. MR. THOMPSON: Thank you, Your Honor. CROSS-E XAMINATION BY MR. THOMPSON: Q. Good afternoon, Professor Haught. A. Good afternoon. Q. You remember me? A. Yes, I do. Q. My name is Richard Thompson. I took your deposition several months ago. A. Yes. Q. This year. Now, one of the first things you said, Professor Haught, was that intelligent design is an old, an old theory, an old doctrine. Is that true? A. I didn't put it in exactly those terms. I said its -- Q. What were the terms you used? A. I said that its foundation in history is the natural theology tradition that's been part of Christianity and Christian thought for centuries. Q. Well, we could also trace evolution to antiquity, can we not? A. Evolution, as a scientific idea, is something that's relatively recent. Evolution as a fact goes back 13.7 billion years. Q. I'm talking about people 1500 years ago that were postulating evolution as a means that life could have evolved. A. If it was that long ago, it could not possibly have been a scientific idea. There were ancient philosophers like Heroclides, for example, who complained that things are constantly in motion. And if you want to call evolution that, then yes, but it's not a scientific idea. Q. What about St. Augustine, didn't he postulate that? A. St. Augustine had the idea that the universe has been seeded with what he called seminis ratsio nales, rational principles, that over the course of time can unfold very much in the way of the more generous theology that I was talking about at the end of my testimony. Q. So merely because you trace a particular idea to antiquity or to old tradition does not in and of itself make that idea invalid, does it? A. Well, if it's science that you're talking about, then we have to go back to the 17th Century and look at the methods that science was using and that scientists still use. And that's really what's distinctive about contemporary evolutionary theory, that it employs a scientific method which Augustine did not have. Q. Please listen to my question. I didn't talk about scientific theory, I talked about an idea. Now respond to it with reference to an idea rather than a scientific theory. MR. WILCOX: Request that it be restated in its entirety then, Your Honor, the court reporter, please. THE COURT: If you would read back the question, please. (Previous question read back.) THE WITNESS: No, but one has to be careful of what's called genetic fallacy in logic. That's the fallacy that tries to understand any phenomenon in terms of how it originated. For example, you could say that astronomy originated in astrology and that chemistry originated in alchemy. But you can't evaluate, you can't reduce the present understanding of chemistry, for example, to what the alchemists were talking about. BY MR. THOMPSON: Q. So your answer to my question was no. Correct? A. Would you repeat the question? It was quite -- Q. It was in this vein. Just because a particular idea is old does not make that particular idea invalid, does it? A. No, no. Q. Pardon me? A. No. Q. And just because an idea -- excuse me, just because a scientific theory is based on the religious motivations of its proponent does not make that theory, in and of itself, invalid? A. No. Q. And just because a scientific theory is propounded by an individual who happens to belong to a particular faith does not make that scientific theory invalid, does it? A. No. Q. And when you talk about genetic fallacy, it would be a fallacy to claim -- a genetic fallacy to claim that a particular theory is invalid because it comes from a particular religious person. Isn't that correct? A. That's correct. Q. Now, would you agree with this statement: It is not helpful, however, simply to dismiss intelligent design theory, IDT, as a product of ignorance mixed with narrow religious biases? Would you agree with that statement? A. Yes. That's not enough of a foundation to dismiss it. Q. Would you agree with this statement: The advocates of intelligent design theory are no less intelligent than their Darwinian and theological adversaries? Would you agree with that statement? A. Yes, I agree with that. Q. And would you agree with this statement: They are often themselves skilled and highly educated physicists, chemists, mathematicians, or biochemists? Would you agree with that statement? A. I do agree. Q. They are neither stupid nor insane. Will you agree with that statement? A. Yes. Q. Clearly, the current dispute between biologists and intelligent design theory is not a matter of who has the highest IQ. Do you agree with that statement? A. I agree with that. Q. I hope you agree with that. I was reading from your book. You slightly mentioned Professor Michael Behe. A. Yes. Q. And you know him at least through his writings, do you not? A. Yes, and I know him personally. Q. Okay. And he is author of the book Darwin's Black Box? A. Yes. Q. Do you consider him a credible scientist? A. As far as I can tell. I'm not one of his scientific peers, so I can't make that judgment. But it seems to me that he's a competent scientist. Q. Well, have you read Darwin's Black Box? A. Yes, I have. Q. Okay. Could you just give me your view of what it entails? What is Darwin's Black Box about? A. It's an attempt to argue that Darwin's theory depends upon gradual step-by-step change over time and that certain biochemical phenomena, subcellular mechanisms, could not have been selected evolutionarily unless they had already been cobbled together or put together so that all the parts are working simultaneously and in harmony and therefore could not have come about by Darwinian evolutionary processes. That's the fundamental thesis of the book. Q. Do you agree that Professor Behe discusses the theory of intelligent design and his concept of irreducibly -- irreducible complexity utilizing scientific empirical evidence? A. Empirical data that he has picked up as a scientist, as a biochemist, certainly is the material that he's trying to organize by way of the hypothesis of intelligent design. That doesn't mean it's scientific, but that's what he's doing. Q. Well, he has postulated a theory, is that correct, irreducible complexity? A. I'm not sure whether he calls that a theory or just an idea. It's part of a component of his theory. Q. Okay. A component. Now, I think you touched on a good point. Data is different than evidence, is it not? A. Evidence and data, in the thinking of most scientists, I don't think there's -- there's a difference between hypothesis and data, yes. Q. Now, will you agree -- A. But not evidence and data. Q. Will you agree that in this book, Professor Behe describes in detail what he has observed about the bacteria flagellum? A. His observations constitute material that he's working with in the book. Q. Would you consider that empirical observation? A. Well, part of it is. But as a member of a scientific community, he has to take a lot of things on fate by his reading of other scientists' work. No scientist sees everything, in other words. Q. I'm talking about the particular biological system, the bacteria flagellum. Is he looking at that bacteria flagellum through scientific instruments? A. Yes. Q. And he is describing the bacteria flagellum in specific terms, is he not? A. He's describing it, yes. Explanation is different from describing, though. Q. And he is also looking at other biological systems in that book, such as the blood clotting mechanism? A. Yes. Q. And he is describing in great detail the data that he sees through his instruments? A. Yes. Q. And as a result of the observations that he sees, he concludes that they are irreducibly complex. Is that correct? A. Whether the data are sufficient of themselves to lead him to that notion of irreducible complexity or whether, perhaps, some a priori patterns of thought have also come to meet that data, that's a question in my mind, anyway. Q. Well, please then give me your understanding of what you believe Michael Behe means by the phrase "irreducible complexity." A. Irreducible complexity refers to any complex entity which is composed of a number of components, the absence of any one of which would have made that entity dysfunctional and, from a point of view of evolutionary thinking, unable to be selected by nature for survival. Q. And his conclusions contradict Darwin's explanation of complex systems having developed through natural selection. Is that correct? A. The contradiction does not lie in observation, observation of the data, but in the different levels of explanation at which Darwin and Michael Behe are working. If I could use the example of the three levels. I think when Behe introduces his notion of irreducible complexity and interprets that as the product of intelligent design, he's working at a different level of inquiry from that of which Darwin and other scientists were. Q. Well, I assume you've read Darwin's Origin of Species? A. I have never read the whole thing, just as I've never read the whole Bible. Q. Maybe you've -- A. I've read most of it, let's put it that way. Q. Maybe you are familiar with this particular paragraph that Darwin wrote in Origin of Species, and I quote, If it could be demonstrated that any complex organ existed which could not possibly have been formed by numerous successive slight modifications, my theory would absolutely down, end of quote. Had you ever heard that challenge? Other Links: What Darwin wrote The defense lawyer quotes chapter 6 of The Origins of Species as saying, "If it could be demonstrated that any complex organ existed which could not possibly have been formed by numerous successive slight modifications, my theory would absolutely down." But he does not quote the next sentence, "But I can find out no such case." A. Yes, I have. And Michael Behe quotes that in every speech he gives. Q. And so Michael Behe's experiments are directly addressing that particular challenge that was levied by Charles Darwin. Correct? A. That's how Behe considers it, yes. Q. And you don't? A. Well, no, because there are other ways of explaining this so-called irreducible -- irreducibly complex entity, including Darwinian ways. Q. Isn't that one of the controversies, though, in science? A. It's a controversy between Michael Behe and most of the scientific community. Q. So it is a scientific controversy? A. Well, I pointed out earlier, when I was asked about do I consider this a controversy, that I don't consider the notion of intelligent design, which is the ultimate explanatory category that Behe appeals to, to be a category within which you can have a real controversy, so no, it's not a controversy. Q. Well, what I'm talking about is the complexity of the -- let's say the bacteria flagellum which Michael Behe says is irreducibly complex versus other scientists who say it is not irreducibly complex. That's a scientific controversy. Correct? A. Okay, yes. Q. Okay. And so it is being debated in the scientific community. Correct? A. It's being debated between Michael Behe and maybe a handful of others and then 99 percent of the scientific community on the other side. Q. Well, you know, just because a particular theory happens to be in the minority does not make that an invalid theory, does it? A. No, it doesn't. Q. In fact, many of the great theories we have today started out as minority theories. Isn't that correct? A. If they were scientific theories to begin with, then they had some chance of survival. If they're not scientific theories to begin with, then they don't have any chance in principle of survival in scientific discourse. Q. Well, I didn't ask about the survival of theories, but I said many scientific theories that we hold today started out as minority positions. Isn't that correct? A. Yes. Q. And they developed a majority position once this debate between scientists took place and empirical data led the consensus of the community to one side or the other. Is that correct? A. Testability is the criteria. Q. Right. And so actually, Michael Behe's concept of irreducible complexity is testable. Isn't that correct? A. I don't know. Q. Well, are you aware of the argumentation going back and forth between Professor Behe and Professor Ken Miller about this particular topic? A. Yes, I am. Q. And Ken Miller says, well, we can explain it -- we can explain this irreducible complex system through natural selection. A. Yes. Q. And Professor Behe says, no, you can't. Correct? A. Yes. And I take the side of Miller there. Incidentally, if I could just comment, it's not just a matter of evolution or intelligent design involved in bringing about complexity, there are also physical processes which are not often mentioned in this discussion, such as the self-organizing properties of matter itself that we are just now discovering scientifically, and they could be a major factor in bringing about what Behe calls irreducible complexity in a purely natural way. Q. I was going to raise that at some point. Is that a theory that Stuart Kauffman -- A. Stuart Kauffman. Q. -- is advancing? A. Among others, yes. Q. Okay. And you use the phrase "self-organizing." A. That's the expression that scientists use. It's a metaphor. Q. Well, to me, self-organizing means some intelligence is involved. A. These are called autopoietic, to be more precise. That is, they're self-making processes. But all of the -- or many of the concepts we use in science are metaphorical. The criterion is not the word, the language, but the measurability of what's going on. Q. So when you're saying "self-making," does that mean duplicating? A. No, not at all. Q. Self-duplicating? A. No. It's simply that we're finding out things that we didn't know scientifically centuries ago or even early in the 20th Century, that matter, that matter is much more resourceful and much more spontaneously self-organizing than we had ever thought, because we had had a wrong impression of what matter is going back to the beginning of the modern age. Q. Well, could it be that this theory of self-organizing will ultimately lead to a discovery that actually matter does have some sort of intelligence? A. That certainly won't be a scientific idea, because, as I said earlier, the category of intelligence is simply not part of the explanatory arsenal of scientific discourse. Q. Are you saying intelligence is outside of the natural sphere? A. I did not say that at all. Intelligence is just as much part of nature as rats and radishes. Q. So that intelligence in a particular matter can ultimately be found. Correct? A. No. Q. Well, science has not explored and explained everything in the universe, has it? A. Intelligence is related to the complexification of the central nervous system of primates and humans. It's not something that you attribute to individual monads, individual atoms or molecules. It requires a complex patterning in order for it to emerge as an emergent property of nature. Q. By the way, you referred to some pages of Pandas and People. How many pages did you read? A. I have no idea. I have perused the whole book, but I only read selectively from passages that I think had relevance to this particular case. Q. Passages that your attorney pointed you to? A. No. During my deposition, I had not -- I mentioned to you that I had not read it, but since then I have read -- paged through it, I should say. But I have not read every word by any means. Q. I mean, I think your evaluation of that book was that it was not very sophisticated -- A. It still is. Q. -- at the deposition. Is that correct? A. Yes. Q. I want to go to a couple of comments you made about the creationism versus intelligent design theory. Isn't it true that a creationist is a term used to describe individuals who would interpret creation stories using the Bible in its literary sense? A. Literary or literal? Q. Literal, excuse me. A. Yes, creationists take the -- when I say "literal," though, I mean that they try to read into it something that's scientifically accurate. Q. So they're focused on the Bible. Is that correct? A. They are, but as products of the modern scientific age, they tend to take scientific assumptions to them when they read the text. Q. And there's a difference between creationist and creationism, correct, or is there? A. Between a creationist -- Q. Creationist and creationism. Is there a difference in your mind? A. Well, a creationist is a person. Creationism is an idea. Q. And creationism is an interpretation of nature which takes the biblical narrative of creation and the sequence of days involved in the creation story corresponding to the Bible literally and factually and then come to conclusions based upon their view of the facts in the creation story. That's pretty compound. A. Yes. Q. If you can't understand it, I'll try to repeat it again. Creationism is the interpretation of nature? A. It's a theological interpretation of nature. Q. Which takes the biblical narrative of creation? A. Narrative or narratives? Q. Narrative. A. Because there are several narratives. Q. Well, I'm talking about the Genesis -- okay, we'll stay with Genesis. A. Within Genesis there are two creation stories. Q. And then take that story or those two stories, however you want to address it, and they take it literally and factually and then come to a conclusion about creation. A. Yes. Q. Intelligent design is different than creationism, is it not? A. Yes, in the same sense that, say, an orange is different from a naval orange. Q. Well, I'm going to go back to your deposition, and you were pretty clear that there was a difference, were you not, in your deposition? A. Yeah, similar to the one that I just analogized. Q. You basically, early on -- I don't want to test your memory. I'll show you the deposition. But early on one of the first things you said was you disagreed with Barbara Forrest and Pennock as to the way they tied together creationism and intelligent design? A. Yes, from the point of view of strict logical precision, because not all intelligent design proponents are biblically literalists. I would want to make them distinct from creationists logically speaking. But as far as the substance of this trial is concerned, there is really no major difference. Q. Well, I'm asking the questions not just focused on this trial, but focused on the outside world as to what creationism is and what intelligent design is. Okay? A. Yes. Q. And so there is a difference between creationism and intelligent design, is there not? A. Yeah, but when you say "difference," that's not the same thing as to say "opposite." Q. Correct, correct. But there is a difference, is there not? A. Yes, there's a subtle difference. Q. Did you ever say there was a subtle difference before? A. I don't know. I'm sure I've said to it my students. Q. Does intelligent design have to focus on the biblical stories of creationism -- of creation, excuse me? A. Not necessarily. Q. But creationism does. Correct? A. Creationists take the biblical story or stories literally, or attempt to do so. Q. Well, on previous occasions prior to this trial, you actually accused Robert Pennock of misleading the public when he conflated creationism with intelligent design theory, did you not? A. Yes, I said that. Q. And what does "conflated" mean? A. To confuse or to alloy, to bring together. Q. To blend. Right? A. To fuse or blend. Q. To blend? A. Yeah. Q. Let me read to you and ask you if this is your testimony today. And I quote from Deeper Than Darwin, Page 125. "The only book on his list to which Cruze gives unqualified approval is Robert Pennock's Tower of Babel, an important critique of anti-Darwinism, but one that I believe misleadingly conflates creationism with intelligent design theory, even though Cruze himself acknowledges that IDT defenders like William Dembski and Michael Behe are not Bible literalists." A. Yes. Q. Is that what you wrote? A. Yes, it is. Q. Is that what you stand by today? A. Yes, I do. Q. Okay. So it is wrong for the Court to get an impression that creationism and intelligent design are the same thing? A. They're not exactly the same thing, but on the issues that really matter, they both, as I said earlier, are trying to bring an ultimate explanation into the category of proximate explanations. So substantively, they are identical as far as what is really important in this particular case. Q. Well, you're not the legal expert, are you? A. No. Q. Okay. So it's up to the Court to decide what is legally important. But in your testimony today, you will testify that there is a difference between creationism and intelligent design, will you not? A. There's a difference, but not necessarily an opposition. Q. They're not the same thing, are they? A. They're not exactly the same thing. Q. In fact, in your deposition, you specifically stated that you would have emphasized the differences between creationism and intelligent design more so than -- when you were comparing Pennock's and Forrest's view, did you not? A. Are those my words? Did I say I would emphasize the difference? Q. That you would have more emphasized the difference. A. Those are my words? Q. Well, I don't want to -- I don't want to misrepresent the record. A. I would have done so more than Pennock does. That's what I'm saying. Q. What is that? A. I would have emphasized the difference more than, say, Professor Pennock does. Q. And you accuse Professor Pennock of misleading the public because he didn't. Correct? A. It was an ingenuous thing on his part. I mean I -- it was sort of an aside that I mentioned. I was not making that a major point. Q. Well, you used that word "misleading." Correct? A. Perhaps I -- is that -- Q. That was the word you used "misleading." A. I'll take your word for it. Q. And it was in your book. Correct? A. Yes. Q. I want to talk about genes for a while, g-e-n-e-s. It's true that Darwinians talk about genes having a mind-like character of survival. Isn't that correct? A. They use that kind of imagery as a popular way of presenting their ideas, yes. Q. Well, isn't -- A. Some of them do. Q. Well, isn't it true that -- A. I'm thinking of Richard Dawkins in particular. Q. Isn't it true that this great dispute over the theory of intelligent design -- that despite this great dispute over intelligent design, Darwinians are postulating matter that has a mind of its own? Isn't that true? A. Sometimes their materialist way of looking at things leads them to that way of expression. Q. You think it's just a form of expression? A. By some. This is not by any means a general judgment. This is something I find with followers of Richard Dawkins. Q. Well, the question I asked you, do you feel that this idea of survival, this characteristic of survival that Darwinists use is merely a form of expression? MR. WILCOX: Objection, Your Honor. He's made it plain that he's referring to some Darwinists, not all Darwinists, as the question implies. THE COURT: Well, the objection is noted for the record. I don't think it's necessary to sustain or to overrule the objection. It's noted. We can move on. BY MR. THOMPSON: Q. Let me put the question in another way, Professor. There are Darwinists who believe that genes have mind-like characteristics of survival? A. No, they don't believe that literally. Q. And my next question is, you just think that this is a literary license that they take to use human characteristics? A. Yes. If you press any one of them, they would say that they don't mean it literally. Q. Let me read from your book Deeper Than Darwin, Page 115. Quote, If we could be assured that the idea of genes striving to survive was simply a convenient way of speaking and one not to be taken too literally, then we might have reason to be less concerned about this dramatic displacement. However, the new Darwinian projection of subjectivity into our genes is more than an innocent literary device, end quote. Is that what you wrote in your book? A. Yes, but at that point I wasn't talking about Darwinism, I was talking about certain materialists' interpretations of Darwinism. The point of that whole book, just to put it in context, is to criticize not evolution and not neo-Darwinism, not Darwinism, but materialists' interpretations of Darwinism. Q. Well, materialists are Darwinians. Right? They're a group of Darwinians? A. But Darwinism in no way logically entails materialism. This is just by accident that some materialists are Darwinians and vice versa. Q. In fact, you go to great lengths to take Darwinists to task because they are materialists, do you not? A. Materialist Darwinists to task, not Darwinists. Q. And some of the most prominent Darwinists are materialists. Correct? A. That's true. Q. Richard Dawkins being one of them? A. Richard Dawkins. Q. Do you know who Matt Ridley is? A. Yes. Q. And you wrote about him in your book Deeper Than Darwin? A. Yes. Q. Let me quote from your book, Page 116, and ask you if this is still a true statement. Quote, It is a mix of cooperation and competition among striving and achieving genes that, accordingly to Ridley, accounts for the evolutionary invention of gender-based behavior. Sex, he says, is the outcome of genes devising strategies to avoid their demise at the hand of parasites, end quote. Doesn't that sound like intelligence, as well? A. Again, Ridley, especially, would want to make it clear that he is not taking the striving as something that's literal. However, I think there's a way in which Ridley has himself at times conflated Darwinian ideas with materialist ideas, and that's what I'm criticizing, not the Darwinism, but the materialist overtones or connotations of his modes of expression. Q. Well, I understand you're taking not only intelligent design to task, but you're also taking a lot of Darwinians to task who have sort of gotten into the metaphysical world. Isn't that true? A. Materialist. Q. Materialist world? A. Not Darwinians, but materialists. Q. Okay. And in another section in your book, Page 3, and I'm quoting again, quote -- this is you writing again -- But enlightened evolutionists caution us that religion and art are merely heart-warming fiction. Our genes, they claim, have created adaptive but essentially deceptive brains and emotions that spin seductive spiritual visions in order to make us think we are loved and cared for. But, in fact, it is all illusion. Darwin has allowed us at last to naturalize religion completely. You wrote that. Correct? A. I was talking about -- Q. End quote. A. That's not my position. I'm describing the position of materialist Darwinians. Q. Correct, yes. And so again we have this idea that these genes are somehow creating -- with their deceptive brains are creating spiritual visions? A. What the materialist Darwinians have to do, since they deny the existence of God, is to come back to the only kind of explanation that's available to them, and that's a Darwinian explanation. So that's another example of what I call refusal to accept layered explanation. They, like the intelligent design people, share in common the conviction that there's only one explanatory slot available. So if intelligent design doesn't fit it, then material processes do and vice versa. But I object to both approaches as not being layered in their understanding of things. Q. So according to many prominent Darwinists, the philosophical message of Darwinism can't be disengaged from Darwin's science. Isn't that true? A. That's exactly what Steven J. Gould said in several of his books. Q. Okay. And he has made that statement, that one can't disengage Darwinism -- A. He hasn't put it in those explicit terms, but he as implied that Darwin comes along with a philosophical message of materialism. And that's why I object to Gould's whole approach, because he conflates science with ideology too much. Not always. Q. So there is really a significant group of Darwinian scientists who are actually getting into the physical -- excuse me, the metaphysical world. Correct? A. Yes, yes. Q. And so -- A. Unconsciously most of the time, but they're doing it, yes. Q. Yes. And so you would have the same kind of criticism of them as you would of your view of intelligent design, would you not? A. Yes. As I expressed to Mr. Wilcox, I would not want a biology class to lead students toward a materialist's view of life, either. Q. Well, according to Gould, the message of Darwinian science is that life has no purpose. Is that a scientific claim? A. No. And I think if you ask Gould, he would have to admit that, also. Q. Okay. Daniel Dennett, do you know who he is? A. Yes. Q. He's a philosopher. Is that right? A. He's a philosopher at Tufts University. Q. Right. And he claims that Darwin is incompatible with religious beliefs? A. Yes. He's a philosopher, not a scientist. That's a philosophical belief. Q. Well, what about E. O. Wilson, who is a biologist at Harvard, he puts Darwin's science in direct competition with religion, does he not? A. Yes, because he is one of these people who unconsciously conflates his very good evolutionary science with a very suspect metaphysical belief system. Not always, but at times. Q. Now, the Origin of Species written by Charles Darwin, I believe it was 1859, something like that? A. It was published in 1859. Q. Published in 1859. Throughout his book, he discusses intelligent design, does he not? A. He does refer to it, yes. Q. Throughout the book? A. He doesn't propose it, he doesn't promote it, but he does discuss it. Q. So he makes reference to design -- A. Makes reference to it, yes. Q. -- throughout the book? A. Yes. Q. Not necessarily concluding that that's an accurate theory? A. Well, and I just might add that he always understands intelligent design in terms of the way Natural Theology of William Paley did, namely as a theistic designer, creator. Q. And -- A. And he looks for an alternative. The whole point of his book was to say that we don't need to explain what goes on in evolution by appealing to this theological notion. Q. Now, just because he mentions design in the book, would you keep it out of science classes? A. The Origin of Species? By no means. Q. Okay. A. But I just would not present it as an alternative to evolutionary theory, and Darwin didn't either. Certainly I would want students to read Darwin, yes. Q. So just because a particular book mentions design does not mean that you personally would advocate removing it from a science classroom? A. The concept -- yeah, I would not advocate that at all. Q. Now, do you remember this famous phrase by Darwin in the last paragraph of his Origin of Species: There is grandeur in this view of life with its several powers having been originally breathed by the Creator, capital C, by the Creator into a few forms or into one? Have you ever heard that? A. I have, and I've also heard historians say that later Darwin sincerely regretted that last paragraph. Q. Well, if that was in his original volume, Origin of Species, and he mentioned the Creator with a capital C and actually postulated that the original form of life was breathed into by the Creator, would that keep the origin of Darwin -- Darwin's Origin of Species outside the science classroom? A. Darwin would never have understood that last paragraph as a scientific statement. So what's at issue is what is truly scientific and what is not. And a good science class will help students distinguish between what is ideology, what is belief, and what is scientific method. Q. Well, the students that get Darwin's Origin of Species aren't going to be able to talk to Darwin. So with that language in Darwin's Origin of Species referring to the Creator, would that cause you to advocate removal of the Origin of Species from the classroom? A. No. In fact, whenever a science teacher tries to define what is peculiarly distinct about science, he or she has to refer to nonscientific kind of discourse as an example by way of contrast that will allow students to see what pure scientific method is about. So, no, there's no reason not to mention nonscientific discourse when you're teaching science so that your students can come to more clarity as to just what is distinct about science. So that would be a nice opportunity for a teacher to do that. Q. Well, I wasn't talking about scientific discourse, I was talking about the book. Would the fact that the Creator was mentioned in Darwin's Origin of Species, would that cause you to remove the book from the classroom? A. No. Q. Going back to Darwin's Black Box by Professor Behe, you actually provide that book to your students in your religion and science class, do you not? A. Yes, I've had my students read either excerpts from it or essays by Behe that recapitulate the main argument of the book, yes. Q. Okay. And you have stated publicly, and I quote, I make sure my students become familiar with its arguments and suspect that discussion of it has enriched many science and religion courses in the last few years. Do you remember making that statement, public statement? A. Yes. It helps by way of contrast, once again, to be able to focus on what is good science and what is not good science. Q. So referring to Darwin's Black Box, regardless of whether you believe in the theory or not, enriches students' understanding. Correct? A. Yes. I'm talking about a theology class, not a science class. In a theology class, we talk about a lot of things that you don't necessarily focus on in science class. Q. But there are a lot of different books you could use to do that. You don't have to use Darwin's Black Box to do that. Correct? A. Oh, sure, yes. In fact, I didn't use it until it was published. Q. Until when? Now, you had three definitions of religion in your reports. Could you give me the first one again? And I'm not trying to test your memory. Do you have a copy of your report in front of you, your expert report? A. I can tell you. In the broadest sense, Paul Tillich, for example, says we can understand religion as devotion to whatever you consider to be of ultimate concern, and that can be anything. It can even be science, for example. There are some scientists who make science their ultimate, and that's religion in a very broad sense of the term. Q. And that's called scientism? A. Scientism is the belief that science is the only valid way to truth, yes. Q. Now, under that definition, would atheism be considered a religion? A. Not atheism as such, but probably every atheist has something that functions as an ultimate -- for example, materialism is a form of atheism in which matter constitutes the ultimate foundation and ground of all being. Q. Well, could you give me your definition of atheism? I should have asked that first. What is your definition of atheism? A. An atheist is someone who denies the existence of the God of theism. Q. And that would have some impact on that person's world-view, would it not? A. Of course. Q. And that was one of the aspects that you talked about in this general definition of religion, you know, world-view kind of definition? A. Well, I don't know whether I would call atheism a world-view. No, it's not -- it's a negative term. It's a denial of a world-view. But in itself, atheism has to espouse some other ultimate for it to be a world-view. But in itself, the word "atheist" is simply a negative term. It's a denial of theism. Q. If I don't believe in a God, if I don't believe in God as an all powerful being, then that could impact all kinds of decisions that I make, moral decisions, family decisions? A. Yes, it sure could. Q. Define "human secularism" for me. A. Define what? Q. Human secularism. A. Human secularism? Is that a term that I've -- I don't recall ever using that term. Q. Well, I don't think you used it, but as a theologian and a philosopher, are you familiar with the term? A. I think you mean "secular humanism." Q. Okay. Secular humanism. I'm sorry. A. Secular humanism is a view that puts humanity, you might say, in the position of ultimate concern. Q. And under your definition of religion, would secular humanism be a religion? A. In that first sense of my three meanings, yes. Q. Now, intelligent design is not a religion, is it? A. Intelligent design is a category within a religious perspective, to be logically precise. Q. Well, is the intelligent design movement religion? A. I would say that fundamentally it is, yes. It's in search of or it presumes a certain ultimate, namely an intelligent designer, and it has a whole set of ideas and a kind of quasi-theology to support that idea. I would say, to be more precise, intelligent design is closer to what I would call theology than religion because intelligent design is a conceptual attempt to clarify the ultimate that's spontaneously believed in by a particular kind of religion. MR. THOMPSON: Your Honor, may I approach the witness? THE COURT: You may. BY MR. THOMPSON: Q. Professor Haught, I would like -- I've placed before you the deposition that was taken of you on June 1st, 2005. I'd like you to turn to Page 181. A. Okay. Q. And just to put it in context, I was asking you about certain characteristics of what a religion would be in the previous pages. And if you want to, you can read, you know, the pages before 181. And then I was about to ask a question of you and I said, If you, and then you responded spontaneously. Would you read that out loud? A. (Reading:) Incidentally, I don't characterize -- I never have characterized the intelligent design movement as a religion. All I've said is that the appeal to the notion of intelligent design is nonscientific and religious in nature. And that was the reason for my qualification. It's more theological than religious. Q. What's the difference between religion and theological? A. Religion is the spontaneous and some philosophers would say the naive pre-reflective involvement of people in a life committed to certain ultimates but not reflected upon. Theology is a theoretical reflection upon what goes on in religion, and theology usually uses philosophical concepts in its attempt to articulate in a theoretical level what's going on in religion. That's why intelligent design is more theological than religious. Q. The big bang theory is a scientific theory. Is that correct? A. Yes. Q. Does it have religious implications? A. Yes. And I believe everything has religious implications. Q. In fact, all scientific theory has religious implications? A. I think so. Not everybody does, but I think it does, yes. Q. In fact, the big bang theory was first postulated by a Belgian priest? A. Well, he and several others, Willem de Sitter, Alexander Friedmann, and Georges Lema”tre, yes. Q. And Einstein thought that priest was a buffoon, did he not? A. At first he did, but then he humbly asked pardon. Q. Because at the time that this Belgian priest postulated the big bang theory, most of the scientific community felt that the universe had always existed? A. I'm not sure that most of them. Certainly materialists among them, by definition, had thought of the universe as eternal. Q. Well, did Albert Einstein think -- A. Yes, especially as a result of his exposure to the philosopher Baruch Spinoza, who was a pantheist and who believed that the universe is eternal and necessary. And Einstein was very attracted to Spinoza's thoughts since he was a young man. Q. And what about Fred Hoyle? A. Fred Hoyle never really gave up his idea that the universe is somehow eternal. Q. And who is Fred Hoyle? A. Fred Hoyle was a British physicist who proposed what he thought to be the only conceivable alternative to the big bang hypothesis, and that was the hypothesis of a steady state, according to which the universe is eternal, but you can explain its expansion by virtue of the introduction of new hydrogen atoms in a certain unverifiable, undetectable way throughout the history of the universe, and that's how he explained the expansion of the universe. Q. Switching over to another -- THE COURT: Let me just stop you for a second. We've been at it here for quite some time. If you think that you're -- and I don't want to cut off your question by any means, but if you think you're close to being finished, we can stay here. Otherwise, our reporter has been at it for some time, I would like to take a break. MR. THOMPSON: Your Honor, it's probably more prudent to take a break. I'm not sure how long I'm going to go. It depends on the witness. THE COURT: All right. Let's take a relatively brief break, let's say no more than 15 minutes we'll break for. And we'll reconvene, and Mr. Wilcox, of course, may have some redirect at that point, as well. So we'll be in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 5 (September 30), PM Session, Part 2 THE COURT: All right, Mr. Thompson, back to you. MR. THOMPSON: Thank you, Your Honor. BY MR. THOMPSON: Q. I just wanted to go back to William Dembski. You've mentioned him several times. Do you know anything about his background? A. A little bit. I think he was a mathematician and then he went to Princeton to get a master's degree in theology. Q. So that it is quite logical that at times, wearing his philosophical hat, he would wax eloquent philosophically. Isn't that correct? A. Yes. Q. And there are also particular treatises that he has written as a mathematician. Isn't that correct? A. Yes. I have never read any of them. Q. There is one that's entitled, The Design Inference. Are you familiar with that? A. I've read parts of it years ago. Q. And that was published by Cambridge University? MR. WILCOX: Press. MR. THOMPSON: Or Press, excuse me. THE WITNESS: I don't remember it. BY MR. THOMPSON: Q. And do you know what William Dembski's view is mathematically on the theory of intelligent design? A. The mathematics I don't know. I'm not a mathematician. Q. Have you ever read about -- maybe not the book but read other articles about his idea that it is highly improbable for these complex structures to have intelligence even if you consider the earth four billion years old? A. Yes. Q. Okay. And he has done mathematical calculations to show it's virtually impossible for the complex structures that we have today to have developed based on natural selection. Isn't that true? A. That's his view. Q. Yes. But it's based on his background as a mathematician. Isn't that correct? A. He uses mathematics in his reasoning, yes. Q. Do you know what -- how would you define mind, m-i-n-d? A. Mind? Mind is the capacity to experience, to ask questions about one's experience, and then to criticize the ideas that we come up with to explain our experience. Q. Is mind a function of intelligence? A. Well, there are different ways of understanding mind. You can understand it as a process or you can understand it as a concrete reality from which mental processes emerge. Q. Is there a real distinction between the two that you just defined as far as being a part of mind? A. Well, mind as a process unfolds in cognitional acts such as being attentive, being intelligent, being critical, and being responsible. Mind as the foundation of that, we call it the desire to know or you could call it the intellect. Q. Both of those would require intelligence, though, the processing and the desire to know? A. In order to explain their existence, you mean, the existence of mind? Q. No, what mind is, the definition of mind. A. They would entail what I would call intelligence, yes. Q. Is mind a part of nature? A. Yes, it is. Q. Now, you wrote in this book that was referenced by your counsel, Science and Religion, you talked about -- and I hope I get this right -- strong anthro -- strong anthro -- A. Anthropic. Q. Anthropic principle, SAP? A. Yes. Q. Would you define what you mean by that? A. Strong anthropic principle maintains that the universe that we live in, the big bang universe that we live in, has been set up, as it were -- "structured" would be a better term -- from the very first microsecond of the universe's existence in such an exquisitely sensitive way that were any of the conditions and constants that prevailed at the time of the big bang absent, then neither life nor mind would ever have arisen. Q. And that is a scientific speculation -- I don't want to call it a theory right now, but is it a scientific theory or is it something less than a theory at this point? A. It's not a scientific theory, it's a hare's breath from intelligent design argument. Q. Are physicists discussing it? A. Yes, they are, as philosophers -- Q. Credible physicists? A. Yes. Physicists are more interested in the weak anthropic principle than the strong anthropic principle. The strong anthropic principle tendentiously moves toward the positing of a cosmic designer, whereas the weak anthropic principle is much less controversial. And that simply maintains that obviously the universe was set up for bringing about beings with minds because we're here. Q. And do these physicists that belong -- that believe in the strong anthropic principle indicate that it requires the existence of a transcendent, orderly Providence with a capital P? A. Some physicists jump to that conclusion as the theologians, but there are other physicists who do not make that conclusion. There are a wide variety of interpretations of the strong anthropic principle. Q. And in your book, you indicate that this particular principle comes pretty close to the intelligent design theory? A. In some interpretations, yes. Q. Yes. But this is being discussed in the scientific world, is it not? A. It's being discussed by scientists, but it's misleading to say it's being discussed necessarily as a scientific hypothesis. It is in some quarters, but not in others. Q. Okay. And the basis of this is that mind basically developed from that big bang? A. The basis of it is that the existence of mind depends physically upon the universe having certain properties. Q. And these properties had to be, as you said, so elegant that complexity of our universe would not have occurred without that elegant mind or design. Is that correct? A. To use the term "design" I think begs the question in a way, because the question is whether it's the consequence of design or whether it's the consequence of many, many, many universes, most of which would not be set up for bringing about consciousness. And the one that we live in, according to the multiverse theory of people like Martin Reese and many others, which is becoming an increasingly popular idea in science today, the existence of our universe with the properties that give rise to life for many scientists -- and this is necessary for scientists to do as scientists -- can be explained naturalistically without appealing to supernatural design. Q. And as you indicated, theologians are interested in this principle? A. Yes. Theologically, it's quite appropriate. And I, myself, strongly suspect that given the -- what I consider to be given the existence of a God who cares that consciousness come about, it would not be surprising that the universe is so constructed as to allow that to come about. But, see, that's a theological jump, not a scientific -- Q. Right, I understand that. That's why I wanted to say that. But also, aside from the theologians' interest, scientists are interested in it. Correct? A. Yes, but scientists qua scientists or scientists qua persons who are curious about ultimate questions? There's a distinction that you have to make. Q. Scientists qua scientists. Physicists that are talking in terms of physics, the laws of physics. A. Oh, yes, physicists are the ones who gave us this new picture of the universe as endowed with the properties that are right for mind. Q. And I don't recall where it's in the book, but I remember reading it, that you said if the universe was a trillionth off -- A. Yes. Q. -- it would have collapsed on itself. A. That's what Stephen Hawking says. Or he wouldn't put it that way. He would say if any of those values, like the expansion rate of the universe, the gravitational coupling constant, and other factors, ratio of electrons, proton mass, things like that, if those values had been off infinitesimally, then not only Hawking, but many, many astrophysicists agree that life would not have been able to evolve and mind would not have been able to evolve out of life. Q. So would that be evidence, these physicists, the claims of these physicists, would that be evidence for a design? A. It would be evidence for a very interesting fit between the physical conditions and parameters of the universe and the existence of mind. But that's not -- they would not use the term "design" in the sense of the product of some intelligence. That's for theology and philosophy to speculate about, not science. Q. Well, that's a self-imposed arbitrary line, is it not, that's for theologists to talk about versus physicists? A. Well, if you're saying that science imposes arbitrary lines in order to distinguish itself from other kinds of inquiry -- I think, as I said earlier in my testimony, science is a self-consciously, self-limiting discipline that leaves out any explanation of things in terms of intelligence, God, miracles, so forth. Q. Are you saying then that only those physicists who believe in the intelligent design theory of Behe and Dembski are holding this anthropic principle? A. No, I would never say anything like that. Q. Okay. So there are physicists who aren't involved in the religious implications of the principle that are actually studying the principle? A. As scientists or as philosophers? Q. As scientists. A. There are many physicists who are studying the physical conditions that make life and mind possible. Q. And, in fact, in your book you also say it is such an infinitesimal chance that human beings were able to be created by this process, did you not? A. Yes. Physicists themselves remark at what they call the remarkable precision with which the initial conditions and fundamental constants are given their mathematical values precisely such as to give rise to life and mind, but they don't explain how this precision came about. That's for theology and philosophy. Q. Again, that's a self-imposed demarcation zone? A. Well, in the sense that science deliberately distinguishes itself from theology and philosophy by limiting itself to efficient and material causal explanation. Q. Are you telling me that if these physicists come with a theory that is accepted based on the evidence, that they would not be able to posit intelligent design because you say that's a theological question? A. They would not, as scientists, use intelligent design as a scientific explanation. Q. Based on the theory that we're talking about held by these physicists, they don't believe that this exquisite, elegant complex university that is responsible for human beings on this small planet happened by accident, do they? A. Many of them don't. They make that judgment, though, not as scientists but as philosophers and theologically-inquisitive people. Q. And they basically posit the theory that at the moment of the big bang, all of the laws of nature had to be in place. Is that true? A. That's not how they would put it. They would say that the conditions and constants that give rise eventually to life and mind had to have been in place, yes. Q. Has Darwin's theory of evolution explained how that happened? A. Darwin's theory of evolution talks about the origin of life, not the universe. Q. And has any evolutionist talked about how that could have happened by natural selection? A. Yeah, there are, in fact, among cosmologists, there are those who have a kind of Darwinian frame of mind, and they would explain the existence of our universe, life giving -- life producing mind producing universe, as a naturally selected to survive phenomenon out of a whole background of lives that are universes which would not be able to give rise to life. Q. And those scientists, I assume, believe in the multiple universes? A. Yes, many of them do. Q. Okay. A. It's not so much belief, it's a scientific speculation. Q. It's speculation, right. In fact, there is some lawyer that kind of developed that theory. Right? A. A lawyer? Q. A lawyer. Are you aware of that? A. No. Q. At least I read it in Time Magazine. A. But I'm happy to hear that. THE COURT: And, of course, you can't believe everything you read. MR. THOMPSON: Thanks, Your Honor. BY MR. THOMPSON: Q. You know, we were talking about the idea that some -- that matter is self-organizing, Stuart Kauffman's theory. A. Yes. Q. Okay. There's another name for that. There's a name for that theory, right, the complexity theory? A. It's a combination of complexity theory, chaos theory, yes. Autopoietic processes. Q. And Kauffman speculates that intelligence is an emergent property of matter. A. Yes. Q. Isn't that true? A. Yes. And he's not alone. Q. Okay. And that matter, as it becomes more complex, develops more intelligence. Isn't that true? A. Yes. And that's very close to the Jesuit paleontologist Teilhard de Chardin's view that consciousness increases in the universe in direct proportion to the increase in ordered complexity of matter. Q. And it's also close to the intelligent design theory, isn't it? A. Not at all, because the way the scientists explain intelligence is by looking toward what is earlier and simpler in the process, whereas the way theology would interpret intelligence -- and I think it has every right to do so -- is in terms of final causes and divine causation, which is not detectable to scientific inquiry. Q. But it's kind of astounding that matter itself, as it gets more complex, would develop its own intelligence. Would that be a fair statement? A. Yes. That it would become alive is also remarkable. Q. Right. You indicated that theology is -- you indicated theology is one prong of intelligent design. A. That's what William Dembski says. Q. Okay. Do you know what the other prong is? A. The other prong, I suppose, for Dembski would be a more empirical and mathematical inquiry into intelligent design. Q. Now, we were talking about, you know, this idea that many Darwinists conflate the theory, the scientific theory, with the philosophy or the religious implications. Is that true? A. Well, they do so not as Darwinists but as philosophers. Q. Well, they think they're acting as scientists though. Right? A. They do, sometimes they do, unfortunately. Q. Can you give me the name of some of them? A. I think that Richard Dawkins, E. O. Wilson, Stephen Jay Gould, they're scientists who carelessly, at times, conflate science with a materialist ideology. For example, if you read Richard Dawkins, sometimes on the same page he switches back and forth three or four times between philosophical statements and scientific statements without pointing this out to the reader. Q. That's a good point. Isn't it true that a lot of times writers on evolution switch back and forth in their -- the definition of evolution that they're using in the same paragraph? A. That's the whole point of my book Deeper Than Darwin, to point out this possibility. Q. Now, there's one part of evolution that you would call a historical science. Correct? A. Yes. Q. And then there's this other part that is, I don't know, neo-Darwinism that is going on right now? A. Metric. Q. And in the historical science of Darwin, really we can't prove whether he was right or wrong, can we? A. What do you mean by "proof"? That's a word that has many meanings. Q. Well, we don't know, based upon the data that we have, whether Darwin was right in his postulation of life starting from one or two cells and developing through a series of macroevolution through natural selection? A. We don't have present observational sensitivity or sense awareness of things that are no longer in the present, but you can make reasonable hypotheses. For example, nobody doubts that the Hawaiian Islands were brought about by volcanic action, most of which nobody ever saw but which nobody doubts takes place. Similarly, evolutionists -- at least in principle, evolutionary science is, in principle, able to make reasonable conjectures -- or hypotheses, rather, about how certain events in the fossil record took place. Q. We see the Hawaiian Islands, so we can at least now that they exist. We see fossil records, so we know that they exist. Will we ever see the first cell or couple of cells that Darwin postulates life began, from which life began? A. Will we ever see them in the present? Q. Yes. A. No, by definition. Q. In fact, this whole idea of man sharing common ancestors is up for debate. Is that correct? A. I don't think so, no. The record of hominid evolution is among the strongest that we have from what I've been told by evolutionary biologists. Q. Have we ever found or identified our common ancestor? A. Not precisely. Q. We don't even have an idea who that common ancestor would be, do we? A. I think we're getting closer and closer by studying genetics, especially, to being able to make more and more reasonable inferences. Q. Well, genetics is not going to tell us who the common ancestor is, is it? A. Genetics is telling us more and more about the story of evolution because as we read the human genome, we can see almost chapter by chapter how evolution came about. Genetics is now one of the strongest -- you might say strongest pieces of evidence for evolutionary science. Q. Well, let me give you an analogy. I have some nuts and bolts. I take some nuts and bolts and make a car. A. Yes. Q. Okay? That's a car. Then I take some other nuts and bolts and make an airplane. They have the same parts, but does that mean that the airplane came out of the car? A. No. Q. So that if there is a God, that God could use the same kind of genetic material making, you know, a monkey or an ape and making a human being. Isn't that a possibility? A. It's a possibility. And God could also make a universe that makes itself. Q. Correct. So that this idea that it's already definitely set as a scientific fact that we came from the same ancestors as the monkey or ape is conjecture at this point? A. I wouldn't say -- I'm not a scientist, so I'm, perhaps, speaking out of turn here. But from what I've read, "conjecture" would be certainly the wrong term. Q. Now, what is theology? A. Theology is reflection upon religious experience which seeks to understand the point, the objective of what we call faith. We might even define theology as St. Anselm did as faith seeking understanding. Q. Now, in theology -- excuse me. Does theology require the study of, say, a supernatural being? A. Theology studies the divine as it's mediated through finite beings. Q. So as a theologian, you are studying concepts of God in the Christian faith or in any one of the Abrahamic faiths? A. Yes. Q. Which? All of them? A. Yes. I think all of them have something to teach each other, so a good theology would be inter-religious. Q. And you're a -- I forgot what they call it, is it a process theologian? A. I'm not a process theologian. People have called me that, but I've never identified myself as such. I use ideas from many, many different kinds of theology, including process theology. Q. Do you consider yourself a Catholic theologian? A. Yes, I do. Q. Have you ever taken the mandatum? A. No. Q. Isn't that required by the church? A. The local bishop has discretion about that, and, fortunately, Theodore McCarrick has decided not to exercise it, very prudently. Q. What I have in front of me is the Catechism of the Catholic Church. Do you recognize at least the cover of it? A. Yes. Q. According to the Catechism of the -- the Catechism of the Catholic Church was developed by the heads of the Catholic Church. Is that correct? A. It was supervised by, I guess, some office of the Vatican. I don't know which one. Q. And it is an official teaching document of the church, is it not? A. Yes. But official teaching documents have various grades of authority. Catechism would not be the highest. Q. And you actually have a lot of problems with this book, do you not? A. Well, the reason that the new Catechism was brought about was that people found the old Catechism was inadequate. And likewise, there are people today, including many theologians, who already find this Catechism inadequate, also. Q. So your answer would be yes to my question? A. Yes. Q. Now, you also have what I would consider, and I'm not a theologian, but I would consider an unusual concept of God. Would you agree with that? A. What kind of concept? Q. An unusual concept of God. A. No, I thoroughly believe that my understanding of God is completely and thoroughly Christian. Q. Do you believe God can be surprised? A. I don't know. Q. Didn't you say that in your deposition, God can be surprised? A. It's possible. Q. Well, if it's possible for you to have said that in a deposition -- A. It's possible that God can be surprised. Q. Oh. Does God know everything? A. Everything that can be known. Q. What can't God know? A. Things that can't be known. Q. And what is that? A. It's unable to be -- you can't specify it. It's in the region of the unknowable, so therefore the unspecifiable. Q. So you put some limits on the ability of God to know everything? A. No, I don't want to limit God. Q. You believe that God started the universe and really doesn't know what's going to happen? A. If you want me to get into the theology of this, I can. It's very complex, and it requires going back to some chapters in the history of theology where this question was debated between Dominicans and Jesuits to the point where the Pope told them both to keep still and stop talking about it. And for that reason, I don't think it's prudent for me to -- THE COURT: The logic there appeals to me. MR. THOMPSON: I'll be very quick, Your Honor. THE COURT: I thought I'd note that. BY MR. THOMPSON: Q. Do you believe in the virgin birth of Christ? A. What do you mean by "the virgin birth of Christ"? Q. The fact that Christ was born from the Virgin Mary. A. You have to put this in context to make this a real question. The stories of virgin births were the ways in which ancient religious communities tried to get across to their followers the specialness of the one who is being born. And so the attempt to be too literal about any of these teachings is, in my view, not to take them seriously. So that question is one that would lead only to a misunderstanding if I were to say yes or no. Q. So isn't that a doctrine of the Catholic Church, virgin birth of Christ? A. It's not in the creed. Well, yes, it is. But it's -- there are lots of doctrines in all religions that need to be interpreted in order to be taken seriously. Q. Well, that's a pretty serious dogma of the church, is it not? A. What the church said -- if you want to find out what the church said, read Leo the XIII's encyclical Providentissimus Deus published in 1893 in which he said Catholics should never look for scientific information in the biblical text. So if you're talking about the virgin birth as something that's scientifically true, Catholics, by instruction of Leo the XIII, do not have to go that way. Q. And you choose not to go that way? A. Right. Q. What about Adam as the first man? A. Even the Hebrew Bible uses the notion of Adam in the universal sense for mankind. Q. Does the church believe that Adam was actually the first man? A. The church believes in these ideas only in connection with the doctrine of original sin, and that means simply that all of us are born into a world that's pretty messed up and we are all contaminated by that and we need redemption from. The key point of the whole virgin birth idea, Adam and Eve, is to emphasize, to make a place cognitionally to understand the meaning of what we call the Savior or theme of redemption. Q. So they're just -- A. Everything is focussed in that way. So to ask atomistically questions like, do you believe in the virgin birth, do you believe in Adam and Eve, is to miss the whole point theologically. Q. But the church believes that, does it not? A. The church is primarily interested in communicating to people the salvific significance of the man Jesus. And throughout the ages it does this in many different ways, and sometimes it has to revive and revise catechisms in order to make that mission something that can be accomplished. Q. What about Eve, do you believe there was a woman named Eve? A. That's the same sort of question. Q. So Adam and Eve to you are not individuals? A. I don't look for scientific information. I don't look for scientifically factual information in a text which, by genre, fits in the category of what all biblical scholars today call myth rather than history. Q. I didn't ask you for a scientific explanation. You're a theologian. As a matter of faith, do you believe -- A. You're asking a historical question, and the whole concept of history, as we understand it today, was in many ways fashioned by the scientific revolution with its concern for factual evidence. So history is not able to be disassociated from the whole scientific movement. MR. THOMPSON: I've got one more question, Your Honor. BY MR. THOMPSON: Q. In your deposition, you talked about the resurrection of Christ, and you indicated that when Christ appeared in the upper room after his resurrection, if we had a video camera going, we would never have captured Him. A. Right. Q. Captured His image. A. Yes. Q. Do you still believe that? A. I believe this, and so does, for example, Cardinal Avery Dulles, who is one of the most conservative church people around. If you read his book, Apologetics and the Biblical Christ, he says just that, if people did not have faith, if his disciples did not have faith, they would not have seen anything. Q. So it was really a matter of having faith and spiritual vision? A. No, the faith was evoked by the presence of the sense that Jesus was alive. Q. So it was not a fact, a historical fact that Christ appeared in the upper room? A. Well, this goes back to what I said about Providentissimus Deus, don't look for simple historical, scientific facticity when there's something much deeper there to look for. MR. THOMPSON: Thank you. THE COURT: All right, Mr. Thompson. We thank you. Mr. Wilcox, redirect. MR. WILCOX: Thank you, Your Honor. REDIRECT EXAMINATION BY MR. WILCOX: Q. Professor Haught, I'd like to just touch on a few points that were brought up in the cross-examination. Do you regard intelligent design as religious because of the religious views of some of its proponents or because of the content of intelligent design? A. It's inherently religious, but in the sense -- "religion" is a word that can encompass both spontaneous religion and theology. As I clarified, it's a theological concept, inherently theological. That means, a fortiori, that it's a religious concept, as well. Q. You were asked whether Mr. Behe's notion of irreducible complexity is or is not testable. Whether or not irreducible complexity is testable, do you have a view as to whether intelligent design is testable? A. Intelligent design is, in principle and forever, untestable. Q. Mr. Thompson asked you several questions about the materialist views of some evolutionary biologists. Am I correct in understanding you that you don't want evolutionary biology being used to either prove or disprove the existence of God? A. Precisely. Q. Is the notion of a supernatural creator a religious notion? A. Yes. Q. I'd like to read from the book Pandas at Page 150, which is the glossary section. And the definition of "intelligent design" is given as follows: "Any theory that attributes an action, function, or the structure of an object to the creative mental capacities of a personal agent. In biology, the theory that biological organisms owe their origin to a preexistent intelligence." Is that a religious proposition? A. In my view, it is. Q. Mr. Thompson asked you what other prongs Mr. Dembski had in his essay that we referred to. MR. WILCOX: May I approach, Your Honor? THE COURT: You may. THE WITNESS: A scientific and philosophical critique of naturalism where the scientific critique identifies the empirical inadequacies of naturalistic evolutionary theories and the philosophical critique demonstrates how naturalism subverts every area of inquiry that it touches. Second, a positive scientific research program known as intelligent design for investigating the effects of intelligent causes. Third, another prong, a cultural movement for systematically rethinking every field of inquiry that has been infected by naturalism, reconceptualizing it in terms of design. And then fourth, the one that I mentioned, a sustained theological investigation that connects the intelligence inferred by intelligent design with the God of Scripture and therewith formulates a coherent theology of nature. None of these are really scientific prongs, they're philosophical. BY MR. WILCOX: Q. Mr. Thompson asked you about whether scientists have found a common ancestor among primates. Have scientists stopped looking for our common ancestors? A. Not at all. Q. Should they? A. That's a testable idea. Q. Should they stop? A. They should not stop. MR. WILCOX: Thank you. No other questions. THE COURT: Recross? MR. THOMPSON: No other questions, Your Honor. THE COURT: All right. Professor, thank you very much. That concludes your testimony. And I understand, Counsel, that that will conclude our trial week. Is that correct? MR. ROTHSCHILD: That is correct, Your Honor. THE COURT: All right. We will then, with the completion of this witness -- and let's take the exhibits, Liz reminds me. We have the CV, which is P315. Obviously you're moving for the admission of the CV. Is that correct? MR. WILCOX: Correct, Your Honor. THE COURT: Any objection? MR. THOMPSON: No objections, Your Honor. THE COURT: That's admitted. P340 is the book by Dembski, that is, Mere Creation; Science, Faith, and Intelligent Design. Are you moving for the admission of 340 in its entirety? MR. WILCOX: In its entirety. MR. THOMPSON: No objections, Your Honor. THE COURT: All right. That's admitted, as well. Any exhibits that I've missed? MR. WILCOX: There was reference to P11, but that's already in. THE COURT: That's in. MR. WILCOX: And there was reference to his expert report, but we're not moving that. THE COURT: No, I didn't think you were. And 11 is in in its entirety. Mr. Thompson, I don't think you referred to any exhibits on cross, to the best of my recollection. MR. THOMPSON: That is correct, Your Honor. THE COURT: Our next trial day will be Wednesday, October 5th, that is next Wednesday, commencing at 9:00 a.m. I'll hear counsel if you have anything further before we recess for the week. MR. THOMPSON: None, Your Honor. MR. ROTHSCHILD: Not from the plaintiffs, Your Honor. THE COURT: I thank all counsel for their presentations and for keeping us moving this week. This trial will stand in recess until October 5th at 9:00 a.m. Thank you all. (Whereupon, the proceedings were concluded at 3:17 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 6 (October 5), AM Session, Part 1 THE COURT: Be seated, please. We welcome you all back for the continuation of the Kitzmiller et al. versus Dover Area School District. et al. trial. We remain in the plaintiff's case, and you may call your next witness. MR. ROTHSCHILD: Good morning, Your Honor. The plaintiffs call Dr. Barbara Forrest. (Dr. Barbara Forrest was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: Please be seated. State your name and spell your name for the record. THE WITNESS: Barbara Forrest. B-A-R-B-A-R-A, F-O-R-R-E-S-T. DIRECT EXAMINATION ON QUALIFICATIONS BY MR. ROTHSCHILD: Q. Good morning, Dr. Forrest. A. Good morning. Q. Where do you live? A. I live in Holden, Louisiana. Q. Are you married? A. Yes. Q. And do you have children? A. I do. Q. How many? A. I have a son 25, and another son who is 20. Q. What do you do for a living? A. I'm a professor of philosophy at Southeastern Louisiana University. Q. Matt, could you pull up Exhibit P-348? Dr. Forrest, is P-348 a copy of your curriculum vitae? A. Yes, it is. Q. And is it an accurate representation of your education, professional experience, and accomplishments? A. Yes. Q. What subjects do you teach at Southeastern Louisiana? A. I teach philosophy 301 and philosophy 302, which are introductory courses. I teach philosophy 310, critical thinking. I teach philosophy 315, the philosophy of history. Philosophy 417, intellectual history. I teach an independent studies course, philosophy 418. I teach history 630, which is a graduate seminar in the history of western thought, and I teach western civilization. Q. Do you have a doctorate degree? A. I do. Q. And where did you take that degree? A. Tulane University. Q. Did you write a dissertation? A. Yes. Q. What was that dissertation about? A. It was the study of the influence of Sidney Hook's naturalism on his philosophy of education. Q. And before we go into that, are you a doctor of philosophy? A. Yes. Q. Who is Sidney Hook? A. Sidney Hook was a very prominent American philosopher in the 20th century. Q. And -- I'm sorry? A. And a close disciple to John Dewey. Q. Do you subscribe to any particular school of philosophy or approach to philosophy? A. Yes. Q. And what is that? A. I place myself in the tradition of John Dewey and Sidney Hook, which is called pragmatic naturalism. Q. And what do you mean by that, pragmatic naturalism? A. Well, we'll take the pragmatic part first. That reflects an American school of philosophy, pragmatism, and for Dewey and Hook as they understand it, it means that an idea is tested by whether it helps us resolve a situation of doubt or uncertainty or helps us resolve a, solve a practical problem, and one of the things that they noted was that the patterns of inquiry that are part of the everyday process of answering questions, resolving uncertainty, or solving problems, really matched the processes that are used in science. So those patterns of inquiry were not invented in science, but they were used very effectively, very systematically in science. Those patterns of inquiry call upon the cognitive faculties that human beings have, and because they do, those faculties don't reach beyond the natural world into the supernatural world. So the conclusions that we reach about the world are naturalistic, hence the pragmatic naturalism part. Q. And for Wes's benefit I'm going to ask that you slow down a little bit. A. Thank you. Q. How does that approach of pragmatic naturalism figure into scholarly research? A. Into my scholarly research? One of the things that pragmatic naturalism emphasizes very strongly is that conclusions about the world must be grounded in data, and the same applies to public policy issues. One of the things that Sidney Hook for example stressed strongly is that when philosophers become involved in public policy issues they must know the facts. So that it really does stress the use of empirical data and being very careful about the acquisition of that data. Q. Are you familiar with the term philosophical naturalism? A. Yes. Q. What does that mean? A. Philosophical naturalism is a comprehensive understanding of reality which excludes the supernatural. It is one which looks at the natural world as the entirety of what exists. Q. And are you familiar with the term methodological naturalism? A. Yes. Q. What does that mean? A. Methodological naturalism is really another term for scientific method. It's a regulative principle. It's a procedural protocol that scientists use. It means very simply that they look for natural explanations for natural phenomena. Q. Is philosophical naturalism part of the scientific method? A. No, it's not. Q. Have you focused your academic research on any particular subject? A. Yes. Q. And what is that? A. I have focused my research on issues surrounding evolution, the teaching of evolution, and the creationism issue. Q. When you use the term creationism, what do you mean? A. Creationism means a number of things. First and foremost it means rejection of evolutionary theory in favor of special creation by a supernatural deity. It also involves a rejection of the established methodologies of science, and this is all for religious reason. Q. And when you say the established rules o science, are you referring to methodological naturalism? A. Yes. The naturalistic methodology that I just explained. Q. Is there only one type of creationism or are there multiple kinds? A. There are multiple kinds. Q. Can you describe the types of creationism? A. Well, the oldest kind is young earth creationism. MR. MUISE: Your Honor, I'm going to object. He's asking questions of explanation, she's obviously offering her opinions now on this case, and we obviously want to voir dire her about her ability to offer opinions, and this is going into really the heart of what her opinions are, the various forms of creationism and so forth. MR. ROTHSCHILD: Your Honor, I'm not going to go into opinions in detail, but I think to ground us, she's using terminology and I think it's important even for the voir dire and for your fact finding on Dr. Forrest's qualifications to understand what we're talking about here. MR. MUISE: Again, Your Honor, it's a very fine line here between what the definition and what she's actually offering in terms of what an opinion is. If we would disagree with what obviously her "definitions," they're really sliding into opinions at this point. THE COURT: I think that given the hybrid nature of this proposed expert that some inquiry into this areas is probably necessary. I'll overrule the objection as it relates to that particular question, which is on young earth creationism, Mr. Muise, but certainly that would not estop additional objections if you feel that the witness is getting too deeply into those areas. It think it's essential to the plaintiff's examination in the voir dire statement of this witness to get into some of those areas. So it's certainly a, it's an appropriate objection under the circumstances, but I don't think that she's far enough into the area that I find an objection needs to be sustained. So we'll overrule the objection. We need to proceed. I don't know that the question was answered. Wes, do you want to read back, or do you recall the question? MR. ROTHSCHILD. If you could read back the question, Wes, that would be great. THE COURT: Thank you, Wes. (The record was read by the reporter.) THE WITNESS: Would you like me to start over with that answer? THE COURT: You may. You can start, my recollection now is that you were, the objection was rendered mid-answer, so you can restart. All right? THE WITNESS: There is young earth creationism, which is the view that the earth is six to ten thousand years old. There's also old earth creationism, which is the view that the earth is several billion years old. BY MR. ROTHSCHILD: Q. As part of your study of evolution and creationism have you studied the subject of intelligent design? A. Yes. Q. And are you familiar with intelligent design being described as a movement? A. Yes. Q. And who describes it that way? A. The proponents of intelligent design, its leaders have described it as a movement. Q. And as you understand how they're using the term, what do they mean by the term movement? A. It's an organized effort that centers around the execution of a particular program that they have. Q. Are you familiar with other scientific topics or theories being described as a movement? Is there a chemistry movement or a germ theory movement? A. I've never heard it described as such, no. Q. How do you study a movement? A. You look at everything they do. I've looked at their writings, the things that they themselves have written. You look at interviews that have been done with them. I've looked at speeches that they've given. I've listened to speeches. I've read articles about them. I've have even looked at their conference proceedings. You look at everything. Q. Do you have specialized knowledge about the history and nature of the intelligent design movement? A. Yes. Q. And how did you acquire that knowledge? A. By doing research into the movement's activities, looking at all of their activities, looking at what they have written, all of the stuff, the things that I just mentioned. Q. Do you discriminate or distinguish between primary sources and secondary sources in doing your work? A. Yes. There is a difference. Q. And explain to us how you use the terms primary source and secondary source. A. Well, in scholarship, a primary source is something written by let's say the person that you're studying, a book or an article that's been written by a person. Secondary sources are sources that are about those people or about their work, articles. Q. And is it common in your academic discipline to use both kinds of sources to study whatever topic you're studying? A. Yes. That's standard procedure. Q. And have you in fact done that in your study of the intelligent design movement? A. Yes. Q. Have you interviewed members of the intelligent design movement? A. Directly no. Q. And why not? A. I wanted to study the movement and understand it by looking at the way they explain it to their intended audiences. I wanted to see how they themselves explain it when they're actually addressing their audience. Q. For how long have you done research on the subject of intelligent design? A. Going on now if you count the two scholarly articles I published in 1999, 2000, going on now about eight years. Q. And in addition to those articles have you written a book on the subject of intelligent design? A. Yes, I've written a book. Q. Matt, could you pull up Exhibit 630? Is this the cover page of the book you wrote on the subject of intelligent design? A. Yes. Q. That's called Creationism's Trojan Horse: The Wedge of Intelligent Design? A. Yes. Q. You're obviously listed as the first author. The second author there, Paul Gross, who is he? A. Paul R. Gross, my co-author, is a scientist. Q. Who is this book published by? A. Oxford University Press, 2004. Q. And is that a leading academic press? A. It's one of the world's leading academic presses, yes. Q. The title includes the term "the wedge," the wedge of intelligent design. Why did you use that word? A. That's a word that the intelligent design leaders themselves use. It's a word they use to describe their movement which is guided by a document called the Wedge Strategy. So it's a term that they coined. Q. And who coined, do you know who coined the term? A. The wedge? Yes. Phillip Johnson. Q. Who is Phillip Johnson? A. Phillip Johnson is the de facto leader of group. He's the gentleman that brought the other members of the group together. He's also the advisor for the Center for Science and Culture. Q. What is Mr. Johnson's background? Is he a scientist? A. No. He's retired now, but he was a law professor at the University of California at Berkley. Q. And you referred to the Center for Science and Culture. What is that? A. That was an organization that was established in 1996 under the auspices of The Discovery Institute. In 1996 it was actually called the Center for the Renewal of Science and Culture. That is the organization in which the strategy of the intelligent design movement is being formally carried out. Q. And you referred to a document, what is that document called? A. It's a document called The Wedge Strategy. Q. And who wrote that? A. Members of the intelligent design movement. It's a tactical document that they, in which they outline their goals and their activities. Q. Does it have any connection with The Discovery Institute? A. Well, yes. It was written under the auspices, it was written, it's a formal statement of the strategy of The Center for the Renewal of Science and Culture. Q. And we'll go into that later after the voir dire. Can you tell us what Creationism's Trojan Horse is about? A. The book actually looks at the way the intelligent design movement is, or The Center for the Renewal of Science and Culture, now called the Center for Science and Culture, looks at the way they're executing the Wedge Strategy, looks at all of the activities that they have engaged to execute the various phases of the strategy. The book also does, my co-author does some scientific critique in the book, and we also analyze the movement and explain the significance of these activities. Q. How did you go about researching that book? A. I went about researching the book by looking at all of, every piece of written information I could find that would explain what this movement is about. I did a great deal of, spent three and a half years doing empirical research. Q. Using primary sources and secondary sources? A. Both, yes. Q. Did your research include anything relating to scientific production? A. Yes, it did. Q. What did you do? A. I wanted to find out if there were any articles in peer reviewed scientific journals using intelligent design as a biological theory. So I searched the scientific databases where those articles would be indexed. Q. What conclusions did you reach in Creationism's Trojan Horse? A. That intelligent design -- MR. GILLEN: Objection, Your Honor. He's specifically asking for the conclusions, which I believe would be a direct question going to her opinion that she's going to be offering in this case. MR. ROTHSCHILD: Your Honor, this is about her scholarly work, writing Creationism's Trojan Horse, not about her opinions in this case, although they will be very similar. THE COURT: Well, I think that probably now crosses the line and exceeds appropriate voir dire. I think it's sufficient for qualifications to get into her scholarly works, the methodology that she utilized in compiling the scholarly work, time spent for example, but I think a question which touches on the ultimate issue, which that was, likely now indicates that Mr. Muise objection is well founded. So I'll sustain the objection on that question. MR. ROTHSCHILD: Thank you, Your Honor. BY MR. ROTHSCHILD: Q. Have you done -- besides Creationism's Trojan Horse have you done other writing on intelligent design? A. Yes. Q. And are those reflected on your curriculum vitae? A. Yes, they're there. Q. Do you have expertise in philosophical issues relating to naturalism? A. Yes, I've done some work in that. Q. Do you have expertise in the history and nature of the intelligent design movement, including its creationist roots? A. Yes. Q. Did you write an expert report in this case? A. Yes. Q. How many expert reports did you write? A. I wrote the expert witness report, and I wrote a supplement to that report. Q. What was the first expert report about? A. It really very closely mirrors the research I have done, for example the research I did on book, it's a summary of actually what the, the work I did on the book. It talks about the nature of the intelligent design movement. Q. And what kind of materials did you rely upon in preparing your first report? A. I relied mostly on the materials, the same materials I used in writing the book, and also some materials on file in the archives at the National Center for Science Education. Q. What was the second report about? A. The supplementary report is about the textbook Of Pandas and People. Q. And what materials did you rely upon to prepare that report? A. I relied on materials that were issued under subpoena from the Foundation For Thought And Ethics supplied to me by the legal team. Q. And Matt, if you could pull up Exhibit 347? Is that the first page of your first expert report? A. Yes, it is. Q. And Matt, if you could pull up Exhibit 349, is that the first page of your supplemental expert report? A. Yes. MR. ROTHSCHILD: Your Honor, at this time I'd like to move to qualify Barbara Forrest as an expert in philosophical issues relating to naturalism and the history and nature of the intelligent design movement, including its creationist roots. THE COURT: All right, Mr. Muise, you may question on qualifications. MR. MUISE: Thank you, Your Honor. CROSS EXAMINATION ON QUALIFICATIONS BY MR. MUISE: Q. Good morning, Dr. Forrest. A. Good morning. Q. You're not an expert in science, correct? A. No, I'm not a scientist. Q. And you have no formal scientific trai ni ng? A. No. Q. You have no training in biochemistry? A. No. Q. You have no training in microbiology? A. No. Q. You're not trained as a biologist? A. No, I'm not a biologist. Q. So it would be true to say that you don't know whether Darwin's theory of evolution has provided a detailed testable rigorous explanation for the origin of new complex biological systems, would that be accurate? A. Actually that is the kind of knowledge that any person that has some understanding of science would know, an educated person would know that that is an established theory. Q. But with regard to my question, do you know whether or not Darwin's theory of evolution has provided a detailed testable rigorous explanation for the origin of new complex biological features? A. As my understanding is, yes, it has. Q. Do you know whether the theory of evolution, in particular natural selection, can explain the existence of the genetic code? A. Excuse me, repeat the question, please? Q. Sure. Do you know whether the theory of evolution, in particular natural selection, can explain the existence of the genetic code? A. My understanding is that natural selection does offer some explanation for that. I could not give you the explanation as a scientist would give it to you of course. Q. Do you know whether the theory of evolution, in particular natural selection, can explain the development of the pathways for the construction of the flagellum? A. As I understand it there is work being done on that as of now, yes. It does offer some explanation. Q. Do you know whether the theory of evolution, in particular natural selection, can explain the existence of defensive apparatus such as the blood clotting system and the immunity system? A. All of those things are being addressed, yes. Q. You have no particular scientific expertise to be able to address those questions, is that correct? A. No, sir, that's not my area of expertise, no. Q. So it would be fair to say that you're not qualified to give an opinion as to whether the bacterial flagellum is irreducibly complex, meaning whether or not it can be produced by a step-by-step Darwinian process? A. That's not my area of expertise. Q. And it would also be true that you wouldn't be qualified to -- I'll repeat that question. Is it also fair to say that you're not qualified to give an opinion as to whether the blood clotting cascade is irreducibly compl ex? A. That's not my area of expertise. Q. And you're also not qualified to give an opinion as to whether the immune system is irreducibly complex, is that correct? A. That is not my area of expertise. Q. So, ma'am, you're not qualified to give an opinion as to whether the claims made by intelligent design advocates such as Michael Behe are scientific, is that correct? A. I have relied on the work of established scientists such as my co-author Paul Gross, and they have a tremendous amount of expertise, and that is what I have relied upon. Q. But in terms of your particular expertise, you're not qualified to give that opinion, is that correct? A. No, sir, and I have never claimed to be. Q. Ma'am, you're not an expert in religion? A. No. Q. You're not an expert in the philosophy of science? A. I'm not a philosopher of science. Q. You're not an expert in the philosophy of education? A. No. That's not the area that I practice in as a philosopher, no. Although I did do quite a bit of work on my dissertation with respect to Sidney Hook about that. Q. Ma'am, you're not a mathematician? A. No. Q. You're not a probability theorist? A. No. Q. You do not possess formal training in mathematics, is that correct? A. No. Q. You have no - - A. Well, college math. Q. Certainly. And you have no doctorate in mathematics, is that correct? A. No, my Ph.D. is in philosophy. Q. So, ma'am, you're not qualified to give an opinion as to whether Dr. Dembski's claim of complex specified information is valid, isn't that correct? A. That is not my area of expertise and I have not offered opinions on that. Q. Ma'am, this is a concept that he wrote about in a book published by Cambridge University Press, correct? A. The Design Inference, yes. Q. So you're familiar with The Design Inference? A. Yes, I know that he's written that book, uh-huh. Q. And Cambridge University Press is similar to like the Oxford University Press is a peer reviewing academic press? A. Yes. Q. And again the book that Dr. Dembski wrote, The Design Inference, explains his ideas of complex specified information, correct? A. Well, Dr. Dembski has written that that book does not address the implications of design theory for biology, so -- but that book is a highly technical book that is not within my area of expertise. Q. And that book does discuss the concept of complex specified information, correct? A. Yes, I believe it does. Q. I want to explore your understanding of intelligent design as it relates to the opinions you intend to proffer in this court. Ma'am, is it your understanding that intelligent design requires adherence to the claim that the earth is six to ten thousand years old? A. No, it doesn't require that, although there are young earth creationists integrally involved in the intelligent design movement. Q. But again your answer is intelligent design does not require adherence to that tenet? A. No, they themselves do not make that a requirement. Q. Is it your understanding that intelligent design does not require adherence to the six day creation event that is a literal reading of the account in the Book of Genesis? A. No, it does not require that. Intelligent design is a broader type of creationism. Q. But it doesn't require a literal reading of the Book of Genesis, correct? A. It does not. Q. In fact, it doesn't require a literal reading of any scripture, correct? A. It does not require a literal reading of scripture, but it is based on scripture. Q. Is it your understanding that intelligent design requires adherence to the flood geology point of view advance by creationists? A. It's my understanding that it does not require that. Q. Is it your understanding that intelligent design requires the action of a supernatural creator? A. Yes, it is my understanding that it does require that. Q. Is that an assumption that you based your opinions on? A. No, it's not an assumption. It's based on statements made by the movement's leaders. Q. But your understanding that it requires the actions of a supernatural creator forms a foundation for the opinions you intend to offer in this case, right? A. Yes. Based on the statements of the movement's leaders themselves. Q. Now, ma'am, you spoke about during your initial examination by Mr. Rothschild this concept of methodological naturalism, correct? A. Yes. Q. And methodological naturalism is a convention that's imposed upon scientific inquiry, is it not? A. No, it's not a convention that is imposed upon scientific inquiry. Methodological naturalism is a methodology. It's a way of addresses scientific questions. It reflects the practice of science that has been successfully established over a period of centuries. It's not imposed upon science. It reflects the successful practice of science. Q. Well, you would agree it places limits on scientific expl orati on? A. It does place limits on what science can address, that's correct. Q. Should scientist be allowed to follow the evidence where it leads or should they be constrained to follow the evidence only where materialism allows? A. Science by its nature and on the basis of its successful practice cannot address questions of the supernatural , and that's because the cognitive faculties that humans have will not take us beyond the reach of those faculties. And so science is really an intellectually quite humble process. It does not address supernatural claims. It has no methodology by which to do that. Q. And are you aware of a claim advanced by Nobel laureate Francis Crick called "Directed Panspermia"? A. Yes. MR. ROTHSCHILD: Objection, Your Honor. This line of questioning is going well outside what would be relevant to qualifications. MR. MUISE: Your Honor, she's testified about the methodological naturalism, and I'm just trying to make a searching inquiry as to her understanding of methodological naturalism, and its application in this case is how it's going to relate to her follow on opinions that I'm sure Mr. Rothschild is going to try to elicit. MR. ROTHSCHILD: I think what Mr. Muise is doing is getting into a discussion of whether methodological naturalism is a valid methodology, is a representative methodology science or not. It's a perfectly appropriate question for him to ask Dr. Forrest as were asked of Dr. Pennock, but I'm not sure whether this is getting us in terms of qualification. THE COURT: How does that go, Mr. Muise, to whether or not she's an expert in the area -- MR. MUISE: Your Honor, I think it also goes to the reliability of her follow on opinions that are going to be addressed by this witness. THE COURT: I don't think it goes to reliability. No, I don't think it's close enough to the stated purpose of the witness, at least in part, which is an expert in methodological naturalism. I think we're going to get afield of that with the question. If she's otherwise qualified it's certainly a proper question on cross by you, but I'll sustain the objection. MR. ROTHSCHILD: Thank you, Your Honor. MR. MUISE: I have one more question along this line, Your Honor, but I think it goes to sort of the assumption that's going to be the basis for her opinion that I just wanted to elicit at this point. THE COURT: Well, we'll see. BY MR. MUISE: Q. Ma'am, is it your understanding that there's no dispute amongst philosophers of science as to whether methodological naturalism is a proper limitation imposed upon scientific inquiry? A. There may be some dispute among philosophers of science, but there is really, that's not a question in dispute among the people who do the science, the scientists themselves. That is the way they do science. It reflects the established, the successful practice of science by the scientists themselves. Q. So using methodological naturalism then as a procedural approach to science as opposed to just necessarily a philosophical approach to science? A. It's not a philosophical approach. It's just a fancy term for scientific method. That's all it is. Q. Do you believe it's improper for academics such as scientists and philosopher of science to challenge the popular convention of methodological naturalism? A. People are certainly free to discuss it in any way they choose. The fact is that it reflects the only workable procedure that science has at the moment. Q. Ma'am, you consider yourself to be a secular humanist, is that correct? A. I'm affiliated with the secular humanist organization. I don't usually put a label on myself in that way. Q. Is methodological naturalism consistent with your world view as a secular humanist? A. Yes, it very much reflects what I explained about the pragmatic naturalism of the people John Dewey and Sidney Hook, in whose tradition I place myself. Q. Do you see the theory evolution as a necessary feature of secular humanism? A. It's not a necessary feature of secular humanism. The theory of evolution is something that virtually all secular humanists endorse because they have a great deal of respect for the practice of science. Q. You mentioned in your testimony this concept of philosophical naturalism. A. Yes. Q. Is philosophical naturalism consistent with methodological naturalism? A. Could you explain what you mean by consistent, please? Consistent with? Q. Are they related in any way? A. They are not the same thing. One can, for example a scientist uses the naturalistic methodology of science. That does not commit the scientist to the world view of philosophical naturalism. Philosophical naturalism takes you beyond scientific method. Q. So for example Dr. Miller, the fact he testified that he does not, or that he rejects philosophical naturalism would be consistent with the way you just answered -- A. Oh, correct. MR. ROTHSCHILD: Objection, Your Honor. This is going again well beyond the qualifications. THE COURT: Well, she answered the question. I'll overrule the objection and let the answer stand. Q. Ma'am, does the fact that methodological naturalism might coincide with your secular humanist world view, would that discredit methodological naturalism from consideration by scientists? A. When you say that methodological naturalism coincides with the world view of secular humanism, if I could explain something about that? Methodological naturalism is used by every human being every day. Every human being who has to solve a problem, answer a question, uses it every day. It's completely noncontroversial, and so it coincides with just about any philosophical position that one might take on the nature of reality. It does not logically entail philosophical naturalism. Q. Ma'am, you testified I believe that your area of expertise is in the nature and strategy of the intelligent design creationist movement, correct? A. That is the subject of my book and a good deal of my published work, yes. Q. Now, you call it intelligent design creationists, correct? A. Right, yes. Q. Now, describing it as creationists, is that your way to discredit the science of intelligent design without actually addressing the scientist claim? A. Not at all. I use that term because the leaders, the movement's own leaders have used it. They have used the term creationist themselves. Q. You do not address the scientific claims of intelligent design in your report, correct? A. No, I didn't address the scientific claims in the report. My book does cover that because my co-author is a scientist himself. Q. Well, you're going to be testifying today pursuant to your report, is that correct? A. My testimony today is connected to my report, yes. Q. Now, we heard testimony in this case demonstrating that the term evolution can have different meanings. It can simply mean change over time or it could also refer to the theory of evolution, for example natural selection. Does that comport with your general understanding of - - A. There are various facets to evolutionary theory. Q. Now, isn't it also true that the term creation has more than one meaning? A. Yes. Q. Could creationism -- A. Excuse me, if I could correct that, there are different types of creationism. Q. Well, would you agree that creationism can simply mean an innovative design capable of bringing about biological compl exi ty? MR. ROTHSCHILD: Objection, Your Honor. Mr. Muise cut off his line of questioning on my direct examination because it got into opinion testimony. Now he's cross examining on the meaning of creationism, and I don't see how this goes to qualifications. THE COURT: Mr. Muise? MR. MUISE: Again, Your Honor, she used the term intelligent design creation, and this is really going to go to the foundation of the opinions that she's going to be offering. I think it is related. It's one thing to elicit the opinions of creationism. It's another thing for her to describe what her understanding of that term is and whether or not she considered those various understandings in the opinions that she's going to be offering. THE COURT: Well, let's look at it this way. Mr. Rothschild introduced her as an expert on the methodology, on methodological naturalism. We have covered that area. Also the history and nature of intelligent design, of the intelligent design movement, including its creationism origin. Now, if you want to ask what that means, ask it that way I think, rather than get into -- I think the nature of the objection is there are various types of creationism. I think the question likely traipses over into appropriate cross examination if she's qualified as an expert. I'll allow you to press on creationism as she uses it and as she defines it. As it relates to her expert report I think arguably that's within qualifications. I'll sustain the objection to that particular question. So you'll have to rephrase it. MR. MUISE: If I may, Your Honor, in part with your explanation, the point I just wanted to make is that she didn't use this, she doesn't define it this way. So it is sort of, it's contrary to you said it would be okay to ask her what she meant by creationism. My point is to say she didn't consider this definition of creation, which is sort of the alternative way of asking the same question that you've just referred to. THE COURT: What definition? MR. MUISE: The one that I used, Your Honor, an innovative design capable of bringing about biological complexity. THE COURT: Well, if she didn't use that, again to question her in that way is appropriate cross, assuming that she's admitted. I say that again. It's how she uses it, not how she didn't use it, that's at issue as it relates to her credentials in my view. MR. MUISE: Then we'll save that one for cross then, Your Honor. BY MR. MUISE: Q. Dr. Forrest, you claim to be an expert on the so-called Wedge Strategy, correct? A. That's the subject that I did research on for three and a half years, yes. Q. And this is reflected in the document The Wedge Strategy, is that correct? A. That's the title of the document. Q. Now, is it true that that document was purportedly stolen from the office of Discovery Institute? A. According to Dr. Meyer that's what happened. Q. Did you ever talk to Dr. Meyer about that? A. No. Q. And this document was a fund raising proposal by Discovery Institute, correct? A. That's the way they have described it. Q. Now, I believe you answered a question to, you answered one of Mr. Rothschild's questions indicating that you have never interviewed personally any Discovery Institute employee or fellow regarding the nature and strategy of this intelligent design movement that you're going to be testifying about, is that correct? A. No, I did not. Q. Have you personally interviewed any Discovery Institute employee or fellow regarding any of the claims in your report or what you re going to testify about today? A. No. Q. Now, in your report you rely heavily on this so-called Wedge Document. Yet you do not rely on Discover Institute's statement in a document that they drafted called The Wedge Document: So What?, which explain the genesis and the nature of the purpose of the Wedge Document, is that accurate? A. That document was drawn up after my book was published. That was produced quite a while after I did my work. Q. And that was produced though before you wrote your report, correct? A. Before, yes, before I wrote the report. Q. So what is the methodological criteria you use to rely heavily on Discovery Institute's Wedge Document, but then to disregard Discovery Institute's own explanation of what the nature and purpose of this document is? A. The Discovery Institute, or the Center for the Renewal of Science and Culture has provided a wealth of written material that I have consulted. I wanted to, if I was going to use that document as a reference point in my research I needed to authenticate it, and I wanted to find authentication of the document independently of what the people at the Discovery Institute might actually say to me if I had interviewed them. So I found independent verification of its authenticity on their own web site. Q. But again, ma'am, my question is you did not rely at all on the Discovery Institute's own published written explanation of what the Wedge Document actually is, which would be a primary source document based on your testimony, correct? A. That information came considerably after I had completed my research for the book. I needed independent verification that the document was authentic, and I found it in text on their web site. Q. But, ma'am, the explanation came after you wrote your report in which the -- THE COURT: I get the point. Let's move on. Q. Now, ma'am, as we know you prepared an expert report and a supplemental report for this particular case which is going to serve as the basis for your testimony, is that accurate? A. Correct. Q. And again it's the report that's serving as the basis of your testimony? A. Yes. Q. Not your book? A. The report, which reflects my book actually. Q. With the exception that we just went through? A. Right. Q. Now, I believe you testified on direct that your testimony, your report and your testimony are based in large part on statements that were made by people that you claim to be leaders of the intelligent design movement? A. They're not people that I claim to be leaders. They are leaders, and they provided a wealth of written material for me to use. Q. And I believe you stated that you consider those statements to be the best evidence of the nature of the intelligent design movement? A. I would take those statements that they make and the materials they produced to explain what they're doing to be the best evidence of what they're doing, yes. Q. Except their explanation of Wedge Document, correct? A. Which was written only in response to chapter 2 of my book. Q. Now, I believe your report, and I believe you also testified here, you indicated that primary data consists of statements by not only the Wedge leaders, but their allies and supporters, is that correct? A. Well, primary data would be statements by the Wedge leaders themselves, things that they have written. That would be what I would consider primary data. Things that are stated by their allies and supporters I would consider secondary data. Q. And you relied on that secondary data to form your opinions that you're going to offer in this case? A. I relied both on primary and secondary sources. Q. And your focus on these allies and supporters was the focus on the religious alliances and association of members of the intelligent design, correct? A. That's correct. Q. So is it your opinion that because intelligent design proponents associate with religious organizations that this shows that the scientific claims that they've made aren't science? MR. ROTHSCHILD: Objection, Your Honor. Again this has nothing to do with qualifications. It's perfectly appropriate cross examination of the opinions that Dr. Forrest is going to deliver, but we're spending a lot of time here doing just that which Mr. Muise or Mr. Thompson will have the opportunity to do after I have asked her about her opinion. THE COURT: The operative word I think in your question was opinion that may be troublesome. But I'll let you speak to it, Mr. Muise. MR. MUISE: Your Honor, as we intend to show during this voi r dire that she selectively takes statements and focuses on certain alliances to the exclusion of all the scientific evidence, all the scientific work, to reach her subjective conclusion, and I'm just going through to demonstrate that her methodology is fundamentally flawed. THE COURT: Well, an expert's conclusion is necessarily subjective. Can we all agree on that? MR. MUISE: To some point, Your Honor. I mean, that's the whole point of the Daubert is to understand that there's some sort of a methodology that is a reliable methodology that is a reliable methodology that you're going to apply. THE COURT: Well, even if I open the gate under Daubert for an expert, that expert is testifying in a subjective fashion, isn't it? Or she? MR. MUISE: Your Honor, if you have a historian who for example only looks at statements from Southerners and they conclude that the South won the Civil War, I think you could say that there's a problem with the reliability of that testimony. THE COURT: Admittedly there is a somewhat indistinct line here, and I understand that you're trying not to cross the line. This is a hybrid expert. This expert I think we can all agree doesn't fit within the express criteria in Daubert. You'd have to struggle to go through the multipart test and to apply it to this particular expert. However, some of your questions go to weight quite clearly, and it is undoubtedly going to be your purpose during cross examination, if the witness is admitted, to talk about what's not included or what is misunderstood or was never considered as it relates to her report. Now, it does cross the line on qualifications as it gets to the comprehensive nature of what she looked at and didn't look at, and I would ask that you restrict your questions to that. Now, you have questioned her in that area for example. The subsequent statement which quite clearly at least from the court's standpoint came out after her book as it related to the Wedge Strategy, I think that that's appropriate for the purpose of credentials and for the purpose of voir dire, but I think your most recent question did cross that admittedly indistinct line, and I'll sustain the objection. BY MR. MUISE: Q. Ma'am, again looking at the data that you relied on, is it true that the data with regard to the associations was focused on associations with religious organizations and religious affiliations? A. Those are not their only associations. Those are important ones, but those are not the only ones, and I did look at some others. For example, they formed associations with members of parts of education for example. So there are others. The religious ones are important. They're not the only ones. Q. And the focus for the purpose of your opinions was the focus on those religious organizations, is that correct? A. As the movement describes itself in looking at the associations which they themselves have cultivated, that was information that I needed to examine and to include in my research and my writing. It's an important part of what they do, and it actually is a stated part of their strategy to form those associations. Q. Now, ma'am, it's true this Wedge Document serves as the foundation for a majority of your opinions, is that correct? A. It's a reference point. It's a reference point for my work. It certainly is not the entire foundation of it, but it's an important reference point. Q. You have no evidence that the board members of the Dover area school district had any knowledge of this Wedge Document, is that correct? A. I have no evidence of that. Q. And in your deposition you were asked whether you believe that the people who prepared the policy at issue in this case were acting under the guidance of the so-called intelligent design movement, and you answered, "I have no way to know." Is that correct? A. That's correct. I have no knowledge that they were acting in that fashion. Q. Ma'am, you're a member of the National Center for Science Education? A. I'm on their board of directors and I'm also a member. Q. And member of the ACLU? A. Correct. Q. You're a member of the National Advisory Council of Americans United for the Separation of Church and State? A. Yes, that's correct. Q. And you're a member of the New Orleans Secular Humanist Association? A. That's correct. Q. And that association is affiliated with the Council of Secular Humanists? A. That's correct. Q. Now, ma'am, you said your opinions are going to be based in large part on this primary source data, which I believe you described as statements of certain proponents of the intelligent design? A. The writings of the proponents of intelligent design. Q. Now, prominent scientists have made non-scientific claims about Darwin's theory of evolution. That's true, correct? A. Could you give me an example of that, please? Q. Certainly. Richard Dawkins, you know who he is, correct? A. Yes. Q. A prominent biologist and Darwinian supporter? A. Yes. Q. Wrote a book called The Blind Watchmaker? A. Yes. Q. And you cite this book in your report, correct? A. Yes. I cite many things in my report. I'm sure it's in there somewhere. Q. I believe it's actually on page 17 at footnote 63? A. Yes, I have a couple of hundred footnotes. Q. And in your report you claim this book is "considered a classic popular explanation of evolution theory." A. Yes, it is. Q. Now, in this book Dawkins claims that, "Darwin made it possible to be an intellectually fulfilled atheist." Are you aware of that? A. Yes, he does make that statement. Q. Are you aware that the Council for Secular Humanists gives out an award for the humanist of the year? A. Humanist of the year? Yes, it's an award they give out. Q. And Richard Dawkins received that award in 1996? A. I'm not specifically aware of that, but -- Q. You're aware that in his acceptance speech he stated, "Faith is one of the world's great evils, comparable to the smallpox virus but harder to eradicate." A. I don't have any knowledge of that speech. Q. Do you agree with that statement? A. Would you repeat it, please? Q. "Faith is one of world's great evils, comparable to the smallpox virus, but harder to eradicate. A. No, I don't agree with that. Q. Do you know who Stephen J. Gould, the late Stephen J. Gould was? A. Yes, a very well known paleontologist. Q. From Harvard University? A. Right. He's deceased. Q. Correct. And he claimed, "Biology took away our status as paragons created in the image of God," and, "Before Darwin we thought that a benevolent God had created them." Are you aware that he made those claims? A. Yes. MR. ROTHSCHILD: Your Honor, I'm going to object to this line of questioning. It has nothing to do with qualifications. MR. MUISE: Your Honor, again it's going to go to the methodology that she's applying in this case. She's saying she's rely on primary statements of individuals, of intelligent design movement leaders to reach her opinion. MR. ROTHSCHILD: I'm sure the -- THE COURT: Let Mr. Muise finish. MR. MUISE: I'm going to demonstrate that you've got supporters of the Darwinian theory of evolution making non-scientific claims, but that does not go to the scientific nature of the underlying claims that they're making. It goes to the heart of what she -- what they're trying to propose her and offer as an expert, it goes right to the heart of the methodology that she's applying in this case. THE COURT: Well, the essential point that you're attempting to make I assume by your questioning is that things were left out. MR. MUISE: Not necessarily that things were let out, but that the whole methodology is unreliable that she's applying here. THE COURT: Well, why was it unreliable? Because there were certain things, areas, quotations, treatises that were not considered or were left out of the analysis? Isn't that the point that you're trying to make? MR. MUISE: Well, I think the point is to show the fallacy of -- THE COURT: But you didn't answer my question. You are attempting to show it appears by your questions that the witness, the proposed expert witness does not cite or therefore presumably didn't consider certain statements that are not in her report or certain activities by individuals you're naming in your cross examination. Isn't that what you're doing? MR. MUISE: I am asking those questions, Your Honor, to set up the question regarding the methodology that she employed. So it's sort of a necessary predicate to get to the question regarding the methodology that she employed in this case. THE COURT: I think we're going to make this unduly difficult, and this could go on endlessly. Let's break it down again. Do you or do you not controvert at this stage that the witness is an expert on methodological naturalism? MR. MUISE: Your Honor, I would say no. In fact, she stated specifically she's not an expert in the philosophy of science. This deals directly with that. She said it's a method employed by scientists. She is not trained as a scientist. She has no scientific claims. She is using this as imposing some sort of broader world view, and you can look specifically at how she's approaching her attack of intelligent design is on the non-scientific claims made by scientists, and she doesn't even address any of the scientific claims. So with terms of methodology, she's a philosopher. She's not a philosopher of science and she's not a scientist. Methodological naturalism is a philosophy imposed on science. MR. ROTHSCHILD: Your Honor? THE COURT: Let's take just that portion of it. MR. ROTHSCHILD: Her dissertation is about she's a naturalist and she is intimately familiar with pragmatic naturalism and philosophical naturalism and mythocological naturalism. She is not trained as a philosopher of science, but interpreting these areas are at the core of her work. It's what she writes about. If you examine her curriculum vitae, she has written on this subject, not just about creationism and intelligent design, but about the issues of naturalism generally. THE COURT: Well, here's -- and then the further purpose stated by Mr. Rothschild is the history as I said earlier and nature of the intelligent design movement, including its creationism origins. Now, if I understand your question, Mr. Muise, correctly, and I'm not sure that I do, but your concern, you don't want her qualified at all, I recognize that, but your particular concern goes to her bona fides as they relate to a scientific background. Is that a fair statement? MR. MUISE: That's part of it, Your Honor, because she does make claims in her report. I'm not sure how she's going to say initially she doesn't believe intelligent design is science, but yet she has no scientific knowledge for that. THE COURT: I understand. MR. MUISE: The other point is that, I mean this is going to cause the court to really go off after red herrings. She's focusing on non-scientific claims, and as I was intending to bring out further as Dr. Miller testified, sci enti sts often make non-scientific claims. That does not undermine the science that they're doing, and that's the point I'm making by bringing up Richard Dawkins, Stephen J. Gould, and the others that I'm going to bring up, and it's a fundamental flaw. There's two flaws. There's the fallacy of the ad hominem which is going to apply here and the fallacy of the genetic that she's going to apply here, and that methodology has no basis for the issues in this case. She's doing ad hominem attacks against certain members. She excludes altogether their scientific writings, and to present this to this court so that it can make a determination whether intelligent design is science or not, Your Honor, I lust think it is not expert opinion that is worthy of any of the issues that are in this case. THE COURT: Mr. Rothschild is eager to respond. MR. ROTHSCHILD: I am, Your Honor. We are not suggesting that Dr. Forrest is here to address the purported scientific claims of intelligent design. We put together a very complementary expert team which includes scientists, scientist philosophers, as well as theologians and experts on teachings, and someone who has studied the intellect, the intelligent design movement. The core question here, the question of whether intelligent design is science, is a very important question in this trial, but the core question is is intelligent design a religious proposition, and it is on that sublect that Dr. Forrest is extremely qualified based on all the empirical research she has done. If we were to suggest that she could answer Professor Behe's claim for irreducible complexity, Mr. Muise would rightfully cross examine her and have her disqualified on that sublect. That's not what she's here to do. THE COURT: Well, I believe that Mr. Muise's concern as I read the report, that the report may cross into the scientific realm and may transcend the stated qualifications of this expert based on her co-author for example, based on the examination of other individuals. I think that that's a valid concern as stated by him. Now, I see this witness I will tell you based on what I have thus far perceived as a proper expert on methodological naturalism, despite Mr. Muise's objection. I don't think that it's essential to that that she be qualified generally in the scientific area. I think that her credentials and experience would allow her to testify in that area as an expert. The stated purpose, the history and nature of the intelligent design movement, and having read the report obviously I think is a proper area for her to testify in. I'm not going to prevent further questioning on this, but I'll tell you based on what I have seen that I think it is, that she's certainly qualified to do that by her scholarly work by the time spent studying the intelligent design movement. Now, within that area there may be portions of the report and they may generate testimony that is objectionable, and I am not preventing objections in those particular areas, and in particular as they relate to science. So that would not disqualify her generally as an expert, and to move this along, if I admit her generally so that she can give a historical panoply, that is certainly well within the realm of possibility that we'll get objections as they relate to areas that are not necessarily historical in nature. And the questions that you asked with respect to the areas not considered, it's very difficult on voir dire as it relates to an expert and, you know, I view this expert not necessarily as a scientific "expert" but as I've used the term hybrid on a couple of different occasions to some degree, this witness is a historian. I find that she may aid the court, but it certainly goes to weight and it's certainly appropriate cross examination concerning what she did not consider, and I think we're now going a little bit afield and you're getting into that. I think that that allows to admit her for these purposes and to not inhibit the defense on cross examination, as it goes to what was considered and not considered, strikes an appropriate balance, and we ought not get unduly hung up here on the qualifications stage. This is a bench trial. I understand that I'm going to hear additional testimony. I understand in particular I'm going to hear testimony from the defense on the scientific claims as they relate to intelligent design. So the gate keeping function of Daubert as you well know, although it's not limited by its terms to jury trials, but it is much more important, and you'll have to trust that the court can separate this out. So you can proceed with your voir dire questioning, but those are my general thoughts on this witness. I do understand your concern, but I don't see those concerns as being sufficient that I would prevent this witness from testifying. Now, I'll rule explicitly after you finish your voir dire, but I hope that gives you some guidance, and you may proceed. MR. MUISE: Thank you, Your Honor, and if I may well, note Mr. Rothschild mentioned about her testimony regarding religion, and as she testified in voir dire she does not have expertise in religion. So that's another area that she has identified she doesn't have expertise. THE COURT: Well, that may allow for parti cul arly precise and clinical either objections or points to be made on cross examination, but again I don't think it generally disqualifies her. MR. MUISE: Your Honor, if I may indulge the court in one further inquiry, because the other component as you know that we have a lot of concern with is the 703 issue that's associated with her testimony, and all of these statements, which is the reason for the line of inquiry that I was pursuing with regard to non-scientific claims by scientists with a different world view no doubt is that her testimony, there's not way to unravel all those statements that she has put in her expert report to show which are the ones that are inappropriate and which are the ones that might very well be appropriate to whatever the inquiry is. THE COURT: Well, what makes them inappropriate? MR. MUISE: Well, You have hearsay on top of hearsay. You have the fact that she's, you know, just disregarding, one of the main things is the sources that she has chosen, which is some of the questions are going to get into, articles written by Dr. Dembski , he holds three Ph.D.'s, a theologian, a philosopher, a mathematician. She cites from the philosophy, theology, but not from the math, and concludes look, it's philosophy and theology, it's not science. But there's no way to unravel those -- THE COURT: Well, you're getting into the ad hominem attack issue that you raised earlier. You wouldn't gainsay that some hearsay may be admissible under 703 as part of an expert report, would you? MR. MUISE: No, and I perfectly understand that it is as long as it's proper. THE COURT: What's proper? MR. MUISE: Proper is one that would demonstrate some measure of reliability and trustworthiness to actually support the claim that the witness wants to testify to. THE COURT: And the whole purpose of my ruling on the motion in limine is to allow you to reserve an objection as it relates to any particular statement that's made. Now, it may be torturous to go through it that way, but that's the only way I know how to do it. So I can't, I'm not going to give a blanket prohibition and say that hearsay is inadmissible generally. On the other hand there may be a statement that for example, and I'm not saying it would be, but hearsay on hearsay, or that it would be taken out of context or particularly unreliable, you've got the opportunity to press on that or to object. So I'm not preventing you from doing that by admitting her. The purpose of admitting her as an expert does not mean to tie this up again, or to attempt to tie it up, that part and parcel every portion of this report can come in in testimony. It by no means indicates that, and you reserve any well placed exceptions, but we're going to be all morning on qualifications if we're not careful. I think to some degree you see where I'm going, and I think that this is it's a difficult area for counsel, it's a difficult area for the court, because this is not, if there is such a thing as a typical expert, this is not a typical expert. This is an area that is blazing new territory, and we're going to have to do the best we can with it, and I think the best way is to admit this witness for the purposes stated, however to allow the defense abundant latitude to object if it gets into, as her testimony gets into particular portions of the report. MR. MUISE: Your Honor, I don't know if we're reaching the point in time in the morning where it might be appropriate for a break, because I wouldn't mind to have a moment to consult with co-counsel, and may we just cut off the voir dire and then proceed with -- THE COURT: I think that's probably well taken. Why don't we do that, and then I'll hear you -- well, I'll allow you to -- well, I'll give you some limited opportunity to complete your voir dire when we come back, but I want to move through it. I think we've got to cut to the chase here. We've been at this a while. We'll take about a 20-minute break. I'll give you limited opportunity for additional voir dire, I'll hear your objections if you have additional objections, and then we'll make a determination on the record with respect to admitting this witness and her testimony for the purpose stated by Mr. Rothschild. So we'll be on break for about 20 minutes. MR. MUISE: Thank you, Your Honor. (Recess taken at 10:12 a.m. Court resumed at 10:41 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 6 (October 5), AM Session, Part 2 THE COURT: Be seated, please. We're back on the record. Mr. Muise, do you have additional questions on voir dire? MR. MUISE: We have a few more, Your Honor, and we're going to be wrapping up it in short order. THE COURT: All right. BY MR. MUISE: Q. Ma'am, based on what you testified to earlier this morning, it's clear the testimony you intend to offer this afternoon is going to be based in large part on statements made by certain intelligent design proponents, is that accurate? A. It's based on my consultation of their writings and things about them in which they are quoted. Q. Ma'am, do you agree with Dr. Miller's testimony that not everything a scientists says is science? A. Scientists make lots of statements sometimes when they're speaking not as scientists, but as just people. Q. In the testimony you intend to offer this morning and this afternoon, ma'am, how will this court know when you're referring to scientific claims made by intelligent design and phil osophi cal or theol ogi cal claims made intelligent design proponents? A. That sounds like it would depend on the question. The question would have to specify and then I would have to specify. Q. Isn't it true in your report you've made no effort to distinguish these sorts of claims? A. I'm not exactly sure, I'm sorry, what you're asking me. Q. Well, isn't it clear in your report, and I'm assuming then your subsequent testimony today, does not make clear the distinction between religious motivations of some intelligent design proponents, the religious implications of intelligent design, and intelligent design as science, isn't that correct? A. I look at the nature of intelligent design in the intelligent design movement. That includes a number of things. It includes most basically the substance of the movement itself, the essence of what it is, but also involves motivations of the people who are carrying out this movement and the goals that they have. So I look at all of it, most basically the nature of intelligent design and the movement that's being used to carry it out. Q. But you don't address the scientific claims of intelligent design, for example irreducible complexity or complex specified information, is that correct? A. That's not what I was called upon to do in my report. Q. So is it accurate to say your focus is on the philosophical and theological claims made by intelligent design proponents? A. Yes. If I may say, in my book we do look at the scientific claim. My co-author is a scientist, so I have some source of expertise to draw from whenever I need to address that, but that's not my primary area. Q. Again, ma'am, you're testifying as to your report, not your book, correct? A. Right. MR. MUISE: Your Honor, we have no further questions, and we move to exclude this witness from testifying as an expert in this case. MR. ROTHSCHILD: Could I ask one question on redirect of voir dire? THE COURT: You can, and then we'll hear argument on qualifications. Go ahead. REDIRECT EXAMINATION ON QUALIFICATIONS BY MR. ROTHSCHILD: Q. Dr. Forrest, is it your view, your opinion, that intelligent design is at its core a philosophical and theological claim? A. It is my view that at its core intelligent design is a religious belief. MR. ROTHSCHILD: No further questions on voir dire, Your Honor. THE COURT: Any recross on qualifications? MR. MUISE: No, Your Honor. THE COURT: All right. So you object to the expert's testimony for the purposes stated by Mr. Rothschild, and we stated and restated those purposes. So there's no need to do that at this point. I'll allow you to expand on that argument if you like. MR. MUISE: Your Honor, this last question that he just proposed to her she said during the voir dire when I asked her if she had any expertise in religion, she said no. She has apparently tracked the nature and the history of this so-called intelligent design movement. She can't address the scientific claims of this. The issue at the heart of this case is whether or not intelligent design is science. THE COURT: As framed by you. MR. MUISE: Well, Your Honor, I think their claim that it's not science. She's made no efforts to address the science component of it, because she can't. She has no expertise. She has focused on the philosophical and theological claims of proponents of intelligent design. THE COURT: Well, the problem with that is that it is an issue to be sure, but another issue, and I understand that they work hand in glove in some cases, these issues, is the religious underpinnings of, or the alleged religious underpinnings of the intelligent design movement as cast by the witness. Why isn't she competent to testify as to that? MR. MUISE: Your Honor, again the religious underpinnings of William Dembski, who's a theologian and a philosopher in addition to a mathematician, is no more relevant than the interrelated underpinnings of Richard Dawkins to say whether or not evolution is -- THE COURT: I might agree with that, but that goes to what I said earlier, Mr. Muise, which is that you may have objections as they relate to specific portions of her testimony, and I restate, because I think it needs to be restated, that nothing that I do in terms of admitting this expert, assuming that I admit her, would prevent you from doing that. But to parse out portions of a report that may be objectionable in that way doesn't help you in terms of her admissibility generally as an expert. We're talking about two different things. So what other arguments do you want to make on that point? MR. MUISE: Again, Your Honor, as indicated from the last question, just the interrelationship, there's no way to separate out those objectionable claims from what she's going to be testifying to. That is in part and parcel of what she's going to be opining is relying on those sorts of objectionable claims, these philosophical and theological statements of proponents. And so the fact that they're so intertwined, there's no way that this court or even us sitting here when she makes a particular claim can parse out what is the basis, the material that she's relying on to make that claim, and those materials are objectionable and undermine the reliability, and if I may just make one other - - THE COURT: Well, the materials themselves may constitute hearsay. We've already been down that path. 703 doesn't exclude hearsay. In an effort to be fair I said the materials had to be brought in in part so that we can assure ourselves that you're given the fair opportunity to discern whether or not, and I'm fairly certain you did this beforehand, and so it's principally for my benefit to see whether or not the statements are taken out of context, which would be one way to measure that, particularly when you're parsing out, using that word again, a particular statement, and I'm perfectly willing to do that on an objection from you. But to say that this witness, who is engaged in a scholarly exercise and has produced a published work, that she can't testify generally subject to well placed objection on the history of intelligent design as it arose, I'm having difficulty seeing why she can't. MR. MUISE: And just a couple of more points to that, Your Honor. With regard to the context, that was the point of some of my last questions, because if the context is a philosophical or a theological claim made by a proponent, that is the context that makes it irrelevant, and that's the point. THE COURT: Do you mean as to their personal beliefs? MR. MUISE: That's correct, Your Honor. THE COURT: Well, and it has to be tied to the -- we're talking in the abstract. A mere statement of faith by a particular individual standing alone, not tied in some way to an analysis of the, not just an analysis but not tied to that individual's work or works, treatises, published works as they relate to intelligent design, that may be indeed objectionable. I'm not preventing that. And this report may have instances of that. But again I don't think it disqualifies the witness as an expert. MR. MUISE: Just two last -- well, it's related, but one last point I guess, Your Honor, is that as she testified there's no evidence that anyone in the school board knew anything about this Wedge Document which forms the foundation of her opinion, nor that any person on the Dover area school district was aware of or operating under the guidance of this conspiratorial intelligent design movement that's somewhere operating out there. THE COURT: But that's weight and relevance. That's not expert qualifications, is it? MR. MUISE: Well, again, Your Honor, I think it's more than just the qualifications. There's a reliability question that's associated with this 703 -- THE COURT: No, the purpose then would be effect, I think, from the plaintiff's standpoint. Having admitted the testimony, you of course can argue that for the effect prong perhaps, for example, and not the purpose prong, and the failure to tie the matters testified to to the individual school board members makes the testimony irrelevant and that it shouldn't be considered by the court. But we're not there, and we're not in your case and I don't think that that goes to qualifications. So you're morphing your qualifications argument into a relevancy argument, and I don't think that's appropriate at this point. MR. MUISE: Thank you. No further argument, Your Honor. THE COURT: I'm going to admit the expert then, again subject to timely objections by the defense, for the purpose stated by Mr. Rothschild, which is an expert on methodological naturalism and the history and nature of the intelligent design movement, and Mr. Rothschild, you may proceed. DIRECT EXAMINATION ON EXPERT TESTIMONY BY MR. ROTHSCHILD: Q. Good morning again, Dr. Forrest? A. Good morning, again. Q. Do you have an opinion about whether intelligent design is a form of creationism? A. Yes. Q. And what is that opinion? A. My opinion is that it is creationism. Q. The district in this case has argued that creationism is limited to a literal interpretation of the account of Genesis from the Old Testament of the Bible. Do you agree that that's a proper definition of creationism? A. No, I don't agree. Q. What do creationists themselves say on that subject? A. Creationists themselves recognize variations among themselves. They recognize the young earth position. They recognize the old earth position. This is quite well known among creationists themselves. Q. Do you have an opinion about whether intelligent design is religious in nature? A. Yes. Q. And what is that opinion? A. That it is essentially religious. Q. On what do you base your opinion that intelligent design is a form of creationism? A. On the statements by the movement's own leaders, they have at times referred to it that way. Q. Anything else? A. Yes. Their rejection of evolution in favor of a supernatural intervention in the process of nature and in favor of special creation of life forms. Q. Has your review of the history of the writing of Of Pandas and People confirmed your conclusion that intelligent design is creationism? A. Yes. Q. On what do you base your opinion that intelligent design is a religious proposition? A. On the statements of its leaders. They have so defined it. Q. We're going to go into those statements in some detail, but has Phillip Johnson made statements to that effect? A. Yes, he has. Q. Matt, could you pull up Exhibit 328? Do you recognize this document? A. Yes. Q. What is it? A. It is entitled "Starting a Conversation About Evolution." It is a review of a book by Dell Ratzsch. This is written by Phillip Johnson. Q. And Dr. Forrest, have you in preparation for your testimony highlighted passages of some of the documents we're going to use as exhibits today? A. Yes, I have. Q. Did you do that for this exhibit? A. Yes. Q. Matt, could you go to the highlighted statement in this exhibit? And Dr. Forrest, could you read that statement into the record, using quotes to indicate when you're quoting from the document? A. Yes. MR. MUISE: We object to the statement as hearsay. THE COURT: Well, you're going to have to do better than that. MR. MUISE: Again, Your Honor, it goes to the content. This is not a claim made by, a scientific claim. It's at best a philosophical theological claim that's made by somebody that she purports to be an intelligent design proponent, and as she said in direct testimony Phillip Johnson is a lawyer. He's not a scientist. THE COURT: We'll have to take it in the context of the entire passage and presume that, meaning I have to see it on the screen, you're going to have to give me the exhibit. MR. ROTHSCHILD: Your Honor, it's exhibit -- THE COURT: Why don't you -- MR. ROTHSCHILD: - - 328. THE COURT: That's helpful to me. MR. ROTHSCHILD: Can I address Mr. Muise's point? THE COURT: Let me read it first. MR. ROTHSCHILD: Sure. (Brief pause.) THE COURT: What is this drawn from? MR. ROTHSCHILD: This is an article as Dr. Forrest described written by Phillip Johnson. THE COURT: Let me see the title page of that again. (Brief pause.) THE COURT: The objection is overruled. BY MR. ROTHSCHILD: Q. Could you read that passage into the record, please? A. Yes. "My colleagues and I speak of theistic realism, or sometimes mere creation, as the defining concept of our movement. This means that we affirm that God is objectively real as creator, and that the reality of God is tangibly recorded in evidence accessible to science, particularly in biology." Q. And based on your reading of this article, what is the movement that Mr. Johnson was referring to? A. He's referring to the intelligent design movement. Q. This is one example of intelligent design movement leaders' own statements indicating the religious nature of the proposition? A. Yes. Q. In preparing your expert report and preparing to testify today did you examine prior court cases relating to the teaching of evolution? A. Yes. Q. And why did you do that? A. Because it gives a good understanding of the history of this issue and shows the religious objections to the teaching of evolution in those cases. Q. Was there any opinion that was particularly important to your opinion? A. Yes. Q. And what was that? A. That was the Edwards vs. Aguillard, 1987 United States Supreme Court reading. MR. MUISE: Your Honor, we're going to object to any testimony related to any court cases or prior decisions. She's not an attorney in this case. There's only one legal expert in this courtroom, and it's the judge, and it's not this witness. THE COURT: Of course that remains to be seen. What do you have to say about that? MR. ROTHSCHILD: Your Honor, she is not going to discuss this court case. She's going to discuss it as a historical fact that's important to the intelligent design movement, including, and this is my -- we're going to go to this in the next couple of questions, an affidavit presented in that case in support of creation science by Dean Kenyon, the author of Pandas. THE COURT: Well, to the extent that Mr. Muise interposes a protective objection as it may relate to a legal interpretation of the case you'll not be able to go there, and I'll sustain the objection on that basis. The questions up to this point with respect to the existence of the case, the naming of the case, are not objectionable, but I understand I think the basis of your objection is that she can't legally interpret the case. I'll hear another objection, I'll allow you a continuing objection in that vein, but we haven't gotten to that point yet. You may proceed. BY MR. ROTHSCHILD: Q. What court wrote the opinion in Edwards that you have read? A. The United States Supreme Court. Q. And do you know when the court issued its opinion? A. June 19th, 1987. Q. I'm not asking you to interpret it, but what's your understanding of what the court ruled in that case? MR. MUISE: Objection, Your Honor. MR. ROTHSCHILD: Your Honor, this is just background. THE COURT: No, I'll sustain that objection. I think that's problematic, and I think furthermore the court is capable of understanding that case. So it's probably a needless question anyway. So let's move on. BY MR. ROTHSCHILD: Q. What is the Edwards decision important to the opinions you're going to give today? A. Because one of the expert witnesses was Dr. Dean H. Kenyon, who is a co-author of Pandas. Q. And did Dr. Kenyon submit an affidavit in support of the teaching of creation science in that case? A. Yes, he did, in 1986. Q. And have you reviewed that affidavit? A. I have. Q. Matt, could you call up Exhibit 418? I apologize, the text is a little hard to read, but do you recognize this document? A. Yes. Q. What is it? A. That's Dr. Kenyon's affidavit. Q. And have you highlighted portions of this document that are important to your opinion about intelligent design? A. Yes. MR. ROTHSCHILD: Matt, could you go to the first, could you actually highlight the heading so we can see clearly that that is an affidavit? I think you need to go down a little -- there we go. MR. MUISE: We object on the basis of hearsay again for any testimony relating to this affidavit, this out of court statement issued by Mr. Kenyon. THE COURT: Again you're going to have to do better than a basic hearsay objection, and it's also an affidavit that appears to have been part of the record papers in that case. Now, is it unreliable? Do you have any reason to doubt its voracity? MR. MUISE: Well, Your Honor, again with regard to it's an affidavit given in a court case that's not addressing the issue of intelligent design. Again she's relying on these statements to arrive at an opinion that's not substantiated by, you know, by weaving this web of these assorted statements throughout the course of the testimony. We're going to continue to object to any of the statements that keep coming up, Your Honor, and I'll ask for a standing objection on that, but -- THE COURT: Well, I don't think a standing objection is going to work for you because you may have particular things you want to say about it. You have to do what you have to do. I'll overrule the objection. MR. ROTHSCHILD: And, Your Honor, we re not introducing this for the truth of the matter asserted. We're introducing it for these are Dr. Kenyon s statement, and I'd just like to add for the record the first exhibit that received this kind of objection, Exhibit 328, is already in evidence. It came in through Dr. Pennock, and I'm not sure why Dr. Forrest is being treated differently than other expert witnesses in this case. Could you go to the first highlighted passage, Matt? BY MR. ROTHSCHILD: Q. Could you read that into the record, Dr. Forrest? A. Yes. "Definitions of creation science and evolution. Creation science means origin through abrupt appearance in complex forms, and includes biological creation, biochemical creation or chemical creation, and cosmic creation." Q. Why is that statement in Dr. Kenyon's affidavit important to your opinion about intelligent design? A. That statement is important because it reflects the definition in Pandas. Q. And when you say the definition in Pandas what is the term that's defined the Pandas? A. The term in Pandas is intelligent design. It's pretty much the same definition here that he's giving for creation science. Q. And we're going to look at some of that language in Pandas later, but why don't we go on to the next highlighted passage. Why don't you go ahead and read that. A. "Creation science does not include as essential parts the concept of catastrophism, a worldwide flood, a recent inception of the earth or life from nothingness, ex nihilo, the concept of time, or any concepts from Genesis or other religious texts." Q. Why is that important to your opinion? A. That's important because it recognizes that there are different types of creationism, that it's broader than just young earth creationism. Q. And I think we have one more passage highlighted, Matt. A. "Sole alternative to scientific explanation, it is not only my professional opinion, but that of many leading evolutionists scientists at present and in the past, that creati on science and evolution are the sole scientific alternative, scientific explanation, although each includes a variety of approaches. Either plants and animals evolved from one or more initial living form, biological evolution, or they were created, biological creation." Q. Why is that important? A. That's important because he's setting out what is called the dual model, or the two model view of evolution and creation, which means that he considers these the only two alternatives. Q. And why is that significant to the issue of intelligent design? A. That's significant here because in 1986 when Dr. Kenyon wrote this he was also working on Pandas the same year, and the two model approach means that if the idea of evolution is undermined, that leaves creation science by default. It also indicates that since he was working Pandas and that book speaks as an intelligent design theorist, he doesn't see any significant distinction between the two, between creation science and intelligent design. Q. I'd like to talk now about the writing of the book Of Pandas and People. When was the book first published? A. 1989. Q. And was there a second published version? A. 1993. Q. Have you prepared a timeline to assist your testimony today on the issue of the creation of Pandas? A. Yes. Q. Matt, could you pull up the timeline and place the Edwards decision and Mr. Kenyon's affidavit, Dr. Kenyon's affidavit on the timeline, and then could you also put up the two published versions of Pandas in 1989 and in 1993? What organization created Of Pandas and People? A. The book was created by The Foundation for Thought and Ethics. Q. Who runs that organization? A. The founder and president is Mr. John Buell. Q. And what do you know about him? A. Mr. Buell at one time worked for Campus Crusade for Christ. Then he worked for Probe Ministries, and I believe he left Probe in order to found, to set up The Foundation for Thought and Ethics. Q. And what is Probe ministries? A. Probe Ministries a campus youth ministry. It operates on university campuses. Q. Do you have any knowledge of whether Mr. Buell is a scientist? A. He's not a scientist. Q. Have you reviewed public filings by the foundation which demonstrate their stated mission or purpose? A. Yes. Q. Matt, could you pull up Exhibit P-12? Do you recognize this document? A. Yes. It's the articles of incorporation for The Foundation for Thought and Ethics. Q. And Matt, could you highlight the dates on that document? And that indicates that the articles of incorporation were filed in 1980 and a follow-up report in 1993? A. Correct. Q. Does this, do these articles of incorporation contain a mission statement by, or a description of what the FTE does? A. Yes, there is a description. Q. Matt, could you go to the highlighted passage? And Dr. Forrest, could you read the highlighted text under Articles? A. Yes, this is Article 5, "The purposes for which the corporation is formed are, 1) the primary purpose is both religious and educational, which includes, but is not limited to, proclaiming, publishing, preaching, teaching, promoting, broadcasting, disseminating, and otherwise making known the Christian gospel and understanding of the Bible and the light it sheds on the academic and social issues of our day." Q. Do you consider that to be announcing a religious agenda? A. Yes, I do. Q. Have you seen other documents prepared by The Foundation for Thought and Ethics that confirm that in fact that organization has a primarily religious agenda? A. Yes, I have. Q. Matt, could you pull up Exhibit P-633. Do you recognize this document? A. Yes. Q. And what is it? A. It is a 1983 publication called The Foundation Rationale. Q. And who publishes this document? A. This is published by The Foundation for Thought and Ethics. The copyright is below the title. Q. And have you highlighted portions of this document - - A. Yes. Q. -- that indicate the religious agenda? A. Yes. Q. And Matt, could you go to the first highlighted portion of the document? MR. MUISE: Your Honor, we object on the basis of hearsay. THE COURT: Are you objecting to the document, reference to the document generally, or to individual parts of the document? MR. MUISE: Well, I understand she's going to start testifying about individual parts of the document as to Mr. Rothschild's indication about highlighting certain sections. THE COURT: Before we go further let's go back to the first page if I could ask. (Brief pause.) THE COURT: All right, that objection is overruled. You can proceed. BY MR. ROTHSCHILD: Q. Could you go to the first highlighted text, Matt, and could you read this text into the record and explain why it's important? A. Yes. MR. MUISE: Objection to the reading of this portion of the text into the record on the basis of hearsay. MR. ROTHSCHILD: I'm not offering it for the truth, Your Honor. THE COURT: And the author of this is? MR. ROTHSCHILD: If you can go to the second page, Matt? Charles Thaxton and John Buell, the president and academic editor of the foundation including during the times Pandas was being developed. THE COURT: Do you have any additional objection? MR. MUISE: Your Honor, this is a document that self-authenticates. I mean, it's fine that he can read that off the document, but there's no way to authenticate that this is in fact that document. THE COURT: Well, it doesn't self authenticate, but that's not the issue. You know, in a 703 analysis it's part of an expert report. I think the question is whether you don't think it's authentic, not whether it self-authenticates, because we're not in a strictly, or in a strict hearsay inquiry. We've been down this road before, hearsay is admissible. So the self-authenticating part is not it. Now, if you tell me that you don't think this is real, if you tell you think it was altered, if you tell me that there's no way for you to know, I might consider that. But you had the report, you've had the ability to check, presumably you've had the ability to access FTE documents. So if it's something other than it doesn't self-authenticate then I'm going to overrule the objection. MR. MUISE: Well, that was in response to just showing his signature. My objection is the hearsay objection that we stated at the front, at the beginning of this testimony. It is the context. This is a philosophical, a theological claim, not a scientific claim. THE COURT: Well, it is a newsletter to close this loop, but it's a newsletter that appears to the court to have been published by The Foundation For Thought and Ethics by Mr. Buell. The court knows what Mr. Buell's position is, and Mr. Thaxton. They are, it is not a matter of controversy that they are the publishers of the book Of Pandas and People. It is a work that is roughly contemporaneous with I think the first publishing or at or around the time of the publishing of the book, or at least if predates it, it doesn't predate it by much, I'm not certain, so I'll overrule the objection. MR. ROTHSCHILD: Your Honor, one more thing. Mr. Muise is objecting because these are philosophical and theological statements, and I think most of what Dr. Forrest is going to testify about surely are, and it is the plaintiff's position that intelligent design is at its core a philosophical, theological, religious statement. So that, I mean, that's what she's here to testify about, so it's not going to be surprising if those kinds of statements are, you know, the core of Dr. Forrest's testimony today. THE COURT: Well, if you said that to get Mr. Muise to stop making continued objections, you're probably going to fail. So let's move on. BY MR. ROTHSCHILD: Q. Dr. Forrest, if you could read that and explainwhy it's significant to the issue of the foundation mission or agenda. A. Yes. "Many of the same Christian parents, however, are not concerned about the teaching of evolution in public schools. Falling SAT scores and increasing drug abuse, violence, abortion, and homosexual activity among teens are the concerns of these parents. Why the fuss about creation being taught in public schools anyway they ask. As we shall show, there is a fine line of reasoning which usually lies hidden when either the subject of origins or morality is discussed, but which actually ties the two concerns together. Once this reasoning is understood it becomes evident that not only does the exclusive teaching of evolution encourage our children's rejection of Judeo-Christian morality, but it also prepares young minds for the reception of religious views which these same parents would find unacceptable." Q. Before you explain the significance, you did read "it's a fine line of reasoning." It didn't say "a fine line," just "a line," so it's "a line of reasoning," so -- A. Did I insert the word "fine?" Q. You did? A. I'm sorry. "There is a line of reasoning." Q. If you could explain why is this important to your opinion about the FTE's agenda? A. This shows that FTE's objection to the teaching of evolution is it undermines moral values and the religious beliefs of young students. Q. Is that a common theme in the creationist movement? A. That's found throughout the creationist movement. Q. Matt, I think there's another passage that Dr. Forrest asked you to highlight. A. "To understand how this can happen we must recognize that there are two basic views of world and man, theism and naturalism. These are philosophical categories, not religious. They can also be called metaphysical positions, world views, or idea systems. Philosopher or not, we all have such a view. Theism and naturalism are mutually exclusive systems of thought as can be seen from a single distinction. Theism affirms a fundamental creatorcreature distinction, whereas naturalism denies this distinction and defines total reality in terms of this world." Q. Why is that important? A. That's very important because one of the most common themes in creationism is the rejection of naturalism to juxtapose it as the opposite of theism, and for that reason to see evolution as inherently atheistic. Q. If you could highlight another passage, Matt? Could you read this into the record, please? A. "That's why Christians, in fact all theists, must insist that whenever origins are discussed, public schools allow the teaching of the evidence for creation alongside instruction in the naturalistic concept of evolution. If the scientific rationale for both creation and evolution were taught there would be an equality demanded by the symmetry of the two metaphysical views, theism and naturalism. If both are not taught, it is not just the subject of origin that is affected. The whole of naturalistic thought is given privileged status by the state, with the de facto result that young minds are prepared to reject theistic approaches to morality and religion. At the same time they are prepared to receive both moral relativism and the various naturalistic religions such as unity, Buddhism, Scientology, and religious humanism." Q. Do you have an understanding based on this passage why the authors are advocating the teaching of creationism? MR. MUISE: Objection. That calls for speculation, Your Honor. THE COURT: I'll sustain the objection. Q. We'll move on to the next exhibit. Matt, could you pull up Exhibit? And do you recognize this document? A. Yes. Q. What is it? A. It's a 1995 fund raising letter written by Mr. Buell. Q. And how did this document come into your possession? A. This is one of the subpoenaed document that FTE provided to the legal team, and the legal team provided it to me. Q. And have you highlighted portions of this letter that are important to your opinion? A. I have. Q. Matt, could you go to the first highlighted passage? MR. MUISE: Your Honor, we object on the basis of hearsay. THE COURT: Overruled. Q. This indicates that this is a discussion of the book Pandas? A. Yes. Shall I read that? Q. I'll read that into the record. "Production of supplemental textbook for biology is already complete. The teachers are now using it in all 50 states. This book Of Pandas and People is favorably influencing the way origins is taught in thousands of public school classrooms." This is what Mr. Buell is conveying to his fund raisers? A. Yes. He's talking about the book Of Pandas and People. Q. Matt, could you go to the next highlighted passage? And could you read that into the record? Go on to the next page where this continues. A. "Our commitment is to see the monopoly of naturalistic curriculum in the schools broken. Presently, school curriculum reflects a deep hostility to traditional Christian views and values and indoctrinates students to this mindset through subtle but persuasive arguments. This is not merely a war over ideas, but over young people and how their lives will be shaped. The current deplorable condition of our schools results in large part from denying the dignity of man created in God's image. Even junior high students recognize that if there is no creator, as textbooks teach, then there is no law giver to whom they must answer, and therefore no need of a moral lifestyle, much less a respect for the life of their fellow man. The message of the foundation is that this is simply unacceptable. Q. What do you understand Mr. Buell to be conveying? MR. MUISE: Objection, calls for speculation. THE COURT: Doesn't the document speak for itself? MR. ROTHSCHILD: I mean, I think based on her overall review of the documents and the history of the writing of Pandas I think Dr. Forrest can give some helpful conclusions about that. I think the document does speak for itself verywell. THE COURT: Well, on that basis I'll sustain the objection. MR. ROTHSCHILD: Okay. BY MR. ROTHSCHILD: Q. You mentioned that Dean Kenyon was one of the authors of Pandas? A. Yes. Q. And he was the expert in the Edwards case? A. Yes. Q. Tell us what do you know about Dean Kenyon? A. Dr. Kenyon is a biophysicist who taught at San Francisco State University. He's one of the co-authors of Pandas. He's also a fellow of the Center for Science and Culture. He's a member of the intelligent design movement. He also wrote sections of young earth creationists books in the 1970's. Q. And can you identify any of those books for us? A. One of those books was by Henry Morris and Gary Parker. I believe the title is What Is Creation Science? Q. Go ahead. A. Another of those books that he wrote a section for was by the young earth creationist A.E. Wilder-Smith. Q. And who is Henry Morris? A. Henry Morris is affiliated with the Institute for Creation Research. He's widely known as the leading, the leader of the young earth creationist contingent in the United States. Q. Who is the other author, named author of Pandas? A. Percival Davis. Q. What do you know about him? A. Percival Davis is the co-author of two earlier books, both taking the young earth creationist view. He was the co-author in 1967 with Wayne Frair of The Case for Creation. He was the co-author of the later edition of that book with Mr. Frair, 1983, called A Case For Creation. Q. Matt, could you pull up Exhibit . Is that the cover page of A Case For Creation? A. Yes, that's the 1983 edition. Q. And it's making a case for young earth creation? A. Yes. Near the end of the book they side with the young earth view. Q. Did Mr. Davis ever renounce his support for young earth creationism before he became involved with or wrote Pandas? A. Mr. Davis? Q. Yes. A. Not that I'm aware of, no. Q. Has he ever to your knowledge renounced his support for young earth creationism? A. I'm not aware that he has, no. Q. Who else has been involved with the creation of Pandas? You mentioned Mr. Buell, Mr. Davis, Mr. Kenyon. A. One of the other people involved was a lady named Nancy Pearcey. I believe she was one of the contributing editors to Pandas. Q. And what do you know about her? A. She is a young earth creationist. She's also a long time member of the intelligent design movement. She's a fellow of the Center for Science and Culture. Q. And has she been involved with any other publications that you're aware of? A. Yes. Q. And what is that? Other Links: Why didn't they tell us? In addition discussing the evidence contained in this transcript, Nick Matzke documents Nancy Pearcey's use of Pandas materials in her Bible-Science Newsletter articles. A. The Bible Science Newsletter. Q. And Matt, if you could pull up Exhibit 634? Is this an example of the Journal of the Bible Newsletter that Dr. Pearcey was the editor of? A. That's the May 1989 edition. Q. And Matt, could you highlight the section to the right that says "dedicated to"? MR. MUISE: Your Honor, we object on the basis of hearsay. THE COURT: Do you want to expand on your objection other than hearsay? MR. MUISE: Again, Your Honor, it goes to -- you've got a Bible science newsletter. There's, I mean the context for this does not fit into what, you know, they're trying to claim that this isn't science. Again they're relying on phil osophi cal and theol ogi cal claims. This is specifically from a Bible science newsletter. MR. ROTHSCHILD: Your Honor, what we're trying to demonstrate is that the book that is in the Dover school Of Pandas and People is a creationist book, and we have various forms of evidence, including that the authors and other editors involved with the creation of that book are clear and explicit creationists. THE COURT: Is the author of this newsletter one and the same with a co-author? MR. ROTHSCHILD: Nancy Pearcey is, and I think Dr. Forrest will testify, was involved with the creation of Pandas. She's not listed as a named author, but is a contributing editor, a reviewer of the book, and - - MR. MUISE: And again, Your Honor, this is going to, you're talking about a person's private religious beliefs they're putting in a Bible of science newsletter. THE COURT: We'll see whether it is. I understand that objection. Your general objection to the document is overruled, but you can interpose more clinical objections as we get into the parts of the newsletter other than the highlighted part, which is where we are now. So the objection to the newsletter generally is overruled. The objection to this highlighted passage is overruled. BY MR. ROTHSCHILD: Q. And could you read the highlighted passage? A. Yes. "Dedicated to special creation, literal natural Bible interpretation, divine design and purpose in nature, a young earth, a universal Noachian flood, Christ as God and man, our saviour, Christ centered scientific research, the inerrancy of scripture. Q. Is this a newsletter devoted to making the case for young earth creationism? A. Yes, it is. Q. And, Your Honor, just to clarify one point on the record, if I could approach the witness? THE COURT: You may. Q. Dr. Forrest, I'm handing you what we marked as P-li, which is the 1993 version of Of Pandas and People, and I'm turning your attention to the page little Roman numeral III, which includes acknowledgments, and is Nancy Pearcey mentioned on that page? A. Yes. Q. And what is she mentioned as having done? A. Under editors and contributors she is mentioned as the person who contributed the overview chapter. Q. Thank you. Do you have an opinion about whether the book Of Pandas and People is a creationist book? A. Yes. Q. And what is that opinion? A. It is a creationist book. Q. And why do you say that? A. First, the inspection of the content of the 1993 edition contains references to a creator. There is a reference to a master intellect. There is a reference to an intelligent designer who shapes living forms out of clay for example, and other such things. You have the usual creationist's criticisms of evolutionary theory. In addition to the content of the book itself the earlier drafts of Pandas are written in the language of creationism using that term. Q. Did you in fact review drafts of Pandas? A. Yes. Q. And how did you, how did those come into your possession so you could review them? A. Those were among the materials that FTE supplied under subpoena to the legal team, and the legal team provided them to me. Q. I'm going to ask you now to look at several documents and ask you to confirm whether these were in fact drafts of Pandas that you reviewed in order to prepare your supplemental report and your testimony today. Matt, could you start by pulling up Exhibit P-563? Do you recognize this document? A. Yes. Q. What is it? A. That is the table of contents for a 1983 document, a draft entitled Creation Biology Textbook Supplements. Q. And you said it's a 1983 draft. What did you do to determine that? A. That year is written by hand at the top of one of the pages, and it's also in the header line in later pages of the book, apparently the header line put there by the word processor. MR. MUISE: I'm going to object based on the hearsay. THE COURT: Objecting to -- MR. MUISE: This document in particular, she's referring to some handwritten components of this particular document as well. THE COURT: That's not a hearsay objection, is it? MR. MUISE: If you have writing on the document, Your Honor, that's hearsay upon hearsay. THE COURT: It doesn't go to the truth. She's saying there's writing on the document. MR. MUISE: I believe she was going to testify that's how she determined the apparent age of this particular document. So she obviously had to rely on the truth of that. MR. ROTHSCHILD: Your Honor, she relied on both the handwriting and what I think she is describing something in typewriting. Those are the only date markings on the document. That's how she was able to make a judgment about whether that is in fact the date. It's not essential to our proof, Your Honor, but I don't think there's anything -- THE COURT: I think it goes to weight. I'll overrule the objection. BY MR. ROTHSCHILD: Q. Matt, could you pull up Exhibit P-560. And this is, as many of these documents has what looks like an envelope page or a folder page on it, but if you could go to the next page, Matt? Do you recognize this document? A. Yes, this document is a later draft entitled Biology and Creation by Dean H. Kenyon, P. William Davis, who was Percival Davis. It's copyrighted 1986 by The Foundation for Thought and Ethics. MR. MUISE: Again, Your Honor, we'd object to the admission or use of this document in testimony on the basis of hearsay. THE COURT: Where did this come from, Mr. Rothschild? MR. ROTHSCHILD: We served a subpoena on The Foundation for Thought and Ethics, and the documents were produced in response to that subpoena. A number of these drafts were shown to Mr. Buell, who confirmed that they are in fact drafts of what became Pandas. We also have other evidence that demonstrates that that is the case, and that's how Dr. Forrest received it. THE COURT: Specifically on the point of whether or not Buell disavowed any of this writing, do you have anything to say about that? MR. MUISE: I'm not aware of him disavowing the writing. I'm not sure whose signature is on the, "Sincerely Yours," whose hand this letter is actually from. THE COURT: Was Mr. Buell specifically deposed on these matters? MR. ROTHSCHILD: He was, Your Honor. THE COURT: Unless you have some basis to tell me that he disavowed what's on here or that this is not the document as it was turned over in discovery, then I would be inclined to overrule the objection. MR. MUISE: It still doesn't affect the hearsay objection, Your Honor, whether he acknowledges it's the document or not, and I understand you've been overruling the objections to hearsay, but I'm making an objection for the record we believe this document - - THE COURT: Well, there's a reliability aspect that I'm considering. I think it is technically hearsay. The hearsay objection more doesn't help me under 703. I think the purpose of this type of torturous, albeit necessary, analysis is to give you the opportunity to do exactly what we're doing. And so on that basis I'll overrule the objection. You may proceed. BY MR. ROTHSCHILD: Q. I think you described that document as another one of the draft documents you reviewed? A. Yes. Q. Could you pull up P-1, Matt? Do you recognize this document? A. Yes. This one is entitled Biology and Origins, again by Dean H. Kenyon, P. William Davis, who was Percival Davis, copyright 1987, by The Foundation for Thought and Ethics. This is another draft. Q. Matt, could you pull up P-562? A. This is a cover page I believe. Q. Why don't we go to the next page, Matt. Do you recognize this document based on the second page of the exhibit? A. Yes, this is a draft entitled Of Pandas and People: The Central Questions of Biological Origins, by Dean H. Kenyon, P. William Davis, copyright 1987, Foundation for Thought and Ethics. Q. Another draft you reviewed? A. Another draft. Q. And Matt, could you pull up P-562? Again I think this looks like an envelope page. If you could go to the next page? Do you recognize this document? A. Yes. This is another draft, Of Pandas and People: The Central Questions of Biological Origins, Dean H. Kenyon, P. William Davis as authors. Copyright 1987, Foundation for Thought and Ethics. Q. And one more draft document, if you could pull up P-565? Do you recognize this document? A. Yes. This is a document entitled Introduction to Summary Chapter. It appears to be a summary of the chapters of Pandas. MR. MUISE: Again, Your Honor, I'm going to object to this document based on the hearsay. THE COURT: Overruled. Q. And was this another draft you reviewed? A. Yes, I have this to review. Q. Were you able to place a date on the draft? A. As nearly as I could figure this must have been produced around 1983 judging by Mr. Buell's comments in his deposition. Q. You read Mr. Buell's deposition on the subjects of these drafts? A. Yes. Q. Three of the documents that we looked at, Biology and Origins and two drafts of Of Pandas and People have the copyright date 1987 on them. Were you able to by examining the documents determine when in 1987 they would have been created? A. Yes, there was some indication. Q. And what was that indication and what did it tell you? A. There were two 1987 drafts in which in the introduction to teachers the June 19th, 1987 Edwards decision was referred to in a footnote. In an earlier draft in that introduction that footnote is missing. There's no reference to Edwards, indicating that that was done before Edwards. The other two 1987 drafts were done after the Edwards decision. Q. And is it correct that it's Biology and Origins that doesn't have the reference to Edwards, and the two Pandas drafts titled Pandas - - A. Yes, I believe that's correct. Q. They do mention Edwards? A. Yes. Q. Matt, could you go back to the timeline? And could you place Biology and Creation, Biology and Origins, and the two Pandas drafts on the timeline? Thank you. Did you compare the drafts of Pandas to the published versions? A. Yes, I did. Q. And did your review of the drafts of Pandas indicate whether it had originally been written as a creationist book? A. Yes, my review of the draft shows that it was written as a creationist book. Q. And what caused you to come to that conclusion? A. Well, the earlier drafts are all stated in the language of creationism. The word is used in various cognates as that term are used throughout. Q. Can you give us a specific example of where that occurred? A. Specific example? Q. Specific example of the use of creationism in the early drafts. A. Yes, it's used in a definition. Q. Okay. And have you highlighted text in each of the drafts as well as the published versions which illustrate this point? A. Yes. Q. Matt, could you pull up the 1986 Biology and Creation, P-560, and go to page ? And is this the text you're referring to as the definition? A. Yes. That's it. Q. And could you read what you're referring to as the definition in the draft Biology and Creation? A. Yes, this is a definition of creation. "Creation means that the various forms of life began abruptly through the agency of an intelligent creator with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc." Q. The proposition stated there, is there a term for that? A. Yes, there's a term for this. Abrupt appearance, or special creation. Q. Matt, could you now pull up Biology and Origins, P-1? And including the highlighted text on page 213, and I'm not going to ask you, you'd have to do a lot of reading, I won't ask you to do this, is this the same definition we just saw in Biology and Creation, creation means various forms of life began abruptly? A. Yes. That's the same. Q. Matt, could you now go to P-562, which is one of the draft titles of Of Pandas and People and go to pages 2-14 through 15 where the definitions are depicted? And is it the case that in this draft titled Pandas we still have this definition, creation means that various forms of life began abruptly? A. Yes. Q. Could you go, Matt, to P-652? And this is another draft of Pandas with copyright 1987? A. Yes. Q. And Matt, could you pull up the definition and the highlighted text there? That's changed now, hasn't it? A. Yes, there is a change. Q. Could you read the text of this definition section? A. "Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, wings, etc." Q. And Matt, could you pull up P-6? This is the first published version of Pandas? A. Yes. Q. And could you go to page 99 through 100, Matt? The definition we saw in that last draft of Pandas made it into the published version in 1989? A. Yes, this is the published version. Q. "Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc." And then if you could pull up P-1l, and go to page 99? Same definition as used there for intelligent design? A. Yes, and this is the 1993 definition of Pandas. Q. And notwithstanding the substitution of a few words, is that still a declaration of the proposition of special creation? A. Yes. It's a definition in terms of abrupt appearance. Q. And is that special creation? A. Yes, special creation. Q. And based on your examination, is what occurred here is that the same definition was, used only substituting words intelligent design and intelligent agency for creation and intelligent creation? A. Yes, that substitution was made. Q. Matt, could you pull up the slide we have to depict that? Q. And we couldn't get all the versions up there, but we have Biology and Creation, Biology and Origins, and the first of the two Pandas drafts, and then the final published version as being used in Dover, and the only substitution is intelligent design for creation and intelligent agency for intelligent creator? A. Yes, that's correct. Q. I'd like to go back to the timeline and lust review what you've observed here. We have this 1986 Biology and Creation draft, and that uses the definition creation equals life began abruptly? A. Yes. Q. And that same definition is used in Biology and Origins in 1987? A. Correct. Q. And then you have the Edwards decision, and that was the case which ruled that creation science is unconstitutional? A. Correct. Q. And the court in that case considered Dean Kenyon's affidavit in which he defined creation as being abrupt appearance? A. That's correct. MR. MUISE: Your Honor, I'm kind of slow on the take obviously, but the claim that creation science holding in Edwards, I'm going to object based on the prior objection. THE COURT: We'll sustain the objection. Again the court understands what that case said. That's not a necessary part of this analysis in any event. The objection is sustained. Q. And Dr. Kenyon in that affidavit also said creation science and evolution are the only two possible alternatives? A. Right. The only two alternatives. Q. And then after the Edwards decision we have one of these drafts of Pandas still define creation as life began abruptly? A. Yes. Q. But by the second draft it switched to intelligent design equals life began abruptly? A. Correct. Q. That continues into the two published versions? A. That's right. Q. Was the substitution of intelligent design for creation in the definitions section the only incident where intelligent design was substituted for creation from the drafts to what was ultimately published? A. No. That substitution was made throughout. Q. Have you prepared an exhibit to demonstrate this point? A. Yes. Q. Matt, could you pull up the first slide of the exhibit? And I'm going to ask you what this depicts, but first could you explain how this graph was created? A. This graph was created based on a word count of the word, a count of the number of times the word "creation" was used, the number of times the word "design" was used. The counts were conducted on ASCII files on the raw text of the draft. Q. Did you do this yourself or did you ask somebody to do it for you? A. The NCSC staff did the word counts and created the chart. Q. Can you tell us, did you do anything to confirm the accuracy of their work? A. Yes. I recreated the word counts on a couple of the drafts myself and got exactly the same results, the same counts. Q. Can you describe for us what this graph depicts? A. The graph depicts the number of times these word were used in the various drafts. For example, on the left-hand side you can see the in Creation Biology, 1983, the term "creation" was used right about 150 times. The word "design" was used about 50 times, and so the red line marks the number of times the word "creation" occurs in the drafts. The blue line marks the number of times the term "design" is included in the drafts. What you see in version 1, 1987, in that draft of Pandas you see that subsequent to that version there is an abrupt decline in the number of times the word "creation" is used, and you can see that in version 2 it's used less than 50 times in Pandas 1987 version 2, whereas in Pandas 1987 version 2 the number of uses of the word "design" rises steeply to somewhere between 250 and 300 times. Q. I noticed that in the earlier versions where "creation" is still being used quite a bit you do have also fairly significant use of the word "design." Do you draw any conclusions based on that? A. Yes. The conclusion is that they are being used interchangeably. They're virtually synonymous. Q. And did you read these drafts? A. Yes, I looked through the drafts, yes. Q. And based on reading them is that what's depicted graphically here is consistent with what you observed when you read it? A. Yes. The visual inspection shows very clearly the substitution of the term "design" for the term "creation." Q. And was it also the case that in the early drafts the terms were sometimes used interchangeably? A. Yes. Q. Matt, could you pull up the next slide? And this is isn't terribly different, but why didn't you describe what this depicts? A. It's a bit broader search. You'll notice that the word "creation" has an ending, it has an "-is" ending. That is so that the counter will pick up any cognate of that word, creationist or creationism, that both will be counted, and here we're looking for the term "intelligent design" rather than just "design." What this indicates is that you see the same thing in these drafts. In the early drafts you see the use of the term "creationism" and its various cognates. Not very much use at all of the term "intelligent design." In fact, in Creation Biology it's zero times. And then subsequent to the version 1 of Pandas 1987 you see a steep decline in the use of the term "creation" and its various cognates, and you see a very sharp rise in the use of the term "intelligent design" in that second version of Pandas of 1987. Q. And based on your review do you see the change happening after the Edwards decision? A. Yes. Q. Have you seen any other documents that suggest that the foundation for thought and ethics understood that the Edwards decision had consequences for the book it was preparing? A. Yes, I have. Q. Matt, could you pull up Exhibit P-350? What is this document? A. This is a January 30th, 1997 letter written by Mr. Buell to Mr. Arthur Bartlett of Jones & Bartlett Publishers. He is soliciting interest in the Pandas text. Q. And is that a mainstream publisher? A. It's a publisher of textbooks. Apparently it publishes a lot of textbooks. Q. Did Jones & Bartlett end up publishing Pandas? A. No. Q. Who did? A. Houghton Publishing. Q. And what kind of books does Houghton Publishing publish? A. It's an agricultural publishing firm. They do not employ science writers, or at that time did not employ science writers or science editors. Q. Matt, could you go to the second page of the document? And I asked you to highlight in that, the third paragraph, it says here, Our manuscript is entitled Biology and Origins." That was a working title for Pandas as we saw it in the earlier draft? A. Yes, that is a working title. Q. And now could you go back to the first page of the document, Matt? And could you illuminate the passages that Dr. Forrest asked you to highlight? And could you read that into the record, Dr. Forrest? A. "In ruling on the so-called Louisiana Balance Treatment acts, this spring the U.S. Supreme Court may not affirm state mandated teaching of creation, but they will almost certainly let stand the above academic freedom for teachers." Q. Do you have an understanding of what case Mr. Buell is referring to here? A. He's referring to the Edwards case. Q. And if you could go to the next highlighted passage, Matt? Could you read this into the record? A. "The enclosed projection showing revenues of over 6.5 million in five years are based upon modest expectations for the market, provided the U.S. Supreme Court does not uphold the Louisiana Balanced Treatment acts. If by chance it should uphold it, then you can throw out these projections. The nationwide market would be explosive." Q. What do you understand Mr. Buell to be conveying there? MR. MUISE: Objection. Calls for speculation. MR. ROTHSCHILD: Your Honor, I think Dr. Forrest can interpret this in relation what she has studied about the writing of Pandas and Mr. Buell's stated rationale. THE COURT: No, I think it speaks for itself. I'll sustain the objection. BY MR. ROTHSCHILD: Q. Do the drafts of Pandas that you reviewed address the issue of the age of the earth? A. Yes. Q. And how do they treat that? A. They recognize the various positions on the age of the earth among different types of creationists. Q. And do they say one is right and one is wrong? A. No. Actually they recognize the young earth view, the old earth view, and although the preference is clearly for the old earth view, they treat the young earth view respectfully as a scientific position which just simply needs more research. Q. I'd like you to look at one exhibit I think provides an example of that. Can you pull up P-555? This is what you called the summary chapter 1 of the drafts that Mr. Buell was provided by the foundation? A. Correct. Q. And Matt, could you turn to page 22 of the document and highlight the first passage? Could you read this into the record, Dr. Forrest? A. "The standard evolutionary interpretation is that rock strata around the world were laid down over several million years. Thus, they document a time sequence. Organisms that appear as fossils in lower strata lived earlier than those in higher strata." Q. And is this your understanding of the sort of the standard evolutionary interpretation? A. It's the standard evolutionary view. Q. Could you go to the next passage, please, and could you read that into the record, continuing on to the next page? A. "Among creationists there is considerable skepticism regarding this traditional interpretation. Three major alternative interpretations are found in creationist literature. One, old earth creation. Some creationists accept the same time sequence in the rocks as evolutionists do, but they draw a different conclusion. They propose that at various times throughout the history of the earth an intelligent agent stepped into the course of natural history to create a new type oflivingthing." Q. Before you go on, Dr. Forrest, at this time as of the writing of this draft were they still using the term "creation" for the central concept of the book? A. Yes. Q. But they're referring here to an intelligent agent stepping into the course of natural history to create a new type of living thing? A. That's correct. Q. That proposition, is that the same thing that's stated in the writings of intelligent design? A. Yes. Q. Why don't you go on -- A. "Number 2, young earth creation. It is possible that the earth is actually quite young, and that the order we see in the rocks is due to something besides the progression of life forms." Q. And then if you could do just one more passage? A. One more, sorry. "3, agnostic creationists. Under this label we include scientists who deny that there is any real order in the fossil record at all . Q. These passages indicate there are various form of creationism? A. Yes. Here there are three. Q. And do I understand correctly that this draft is not taking any position on one version being right and the other being wrong and one being inside science and one being out? A. They are all considered science. Q. Per the authors of this chapter? A. Yes. Q. How does Pandas treat this issue of the age of the earth? A. In Pandas, and I'm speaking of the 1993 version that I looked at, in Pandas all of these views are subsumed under the grouping of design. They're referred to as design proponents. There is some indication that there's a preference for the old earth view and that the young earth, that other design proponents prefer to condense the history, the age of the earth into thousands of years. Q. Based on your reading about the intelligent design movement, including these drafts but also more widely, do you find this treatment of the various arguments for the age of the earth to be important? A. Yes, they're important. Q. Why? A. They're important because it indicates that the young earth view is considered a scientific view, which they believe creation science to be, and that they are treating it respectfully and consider it a part of creation science. Q. I think you said during the qualifications stage of this, of your testimony, that intelligent design proponents in fact have called themselves creationists. Is that right? A. Yes, they have. Q. Matt, could you pull up Exhibit 360 and highlight the title and author? Can you read this into the record and tell us what this document is. A. Yes. This is a title. It's called Challenging Darwin's Myth by Mark Hartwig. That's a slight misspelling. It should be H-A-R-T-W-I-G. Q. And when was this published? A. This was in May of 1995. Q. Who is Mark Hartwig. A. Mark Hartwig is an intelligent design proponent. He's a long time fellow of the Center of Science and Culture. He also at one time worked for the Foundation for Thought and Ethics. Q. Have you highlighted certain passages in this article? A. Yes. Q. Matt, could you go to the first highlighted passage? Could you read this into the record, please? A. "Today a new breed of young... -- MR. MUISE: Objection, Your Honor. Hearsay. THE COURT: Well now, this might be somewhat different. You said, Mr. Rothschild, in your question that the author of this was affiliated at one time with The Foundation for Thought and Ethics, is that correct? MR. ROTHSCHILD: I didn't say it, but Dr. Forrest did. THE COURT: Or in answer to a question that was stated. Standing out there and unconnected to either FTE or directly linked to Pandas there's a danger that we're going to get afield here. So there may be another basis for the objection. A proponent of intelligent design and that proponent's beliefs, if not tied up some place, I think could be objectionable. MR. ROTHSCHILD: Your Honor, I think Dr. Forrest testified, and she'll correct me if I'm wrong, that Mr. Hartwig is familiar with the, affiliated with the Discovery Institute, which is obviously a central player in this movement, and I'll warn you in advance that the next document we're going to look at was written by Paul Nelson, another member of the Discovery Institute, very active, and both of them give a historical summary of certain aspects, some of the history of the intelligent design movement. I mean, you'll recall Mr. Muise admonished Dr. Forrest for not having looked at the so what document written after her book, and I think she suggested in reaction to her book. These are two people writing as insiders of this Wedge movement and the Discovery Institute about how this came about and who these people are. So I think it's extremely relevant. It's exactly what someone studying the history of the intelligent design movement would look at as a primary source for how this movement was created. THE COURT: All right. I'll overrule the objection. MR. ROTHSCHILD: Thank you, Your Honor. BY MR. ROTHSCHILD: Q. Could you read this passage into the record? A. "Today a new breed of young evangelical scholars is challenging those Darwinist assumptions. They argue that intelligent design is not only scientific, but is also the most reasonable explanation for the origin of living things, and they are gaining a hearing." Q. Could you tell us what the term evangelical means? A. Evangelical refers to a particular position in Christianity in which the adherents believe themselves to have the responsibility of evangelizing, of carrying out what they consider to be the great commission to carry the gospel around the globe. MR. MUISE: Your Honor, objection. She testified that she is has no expertise on religion, and here she is now expounding on carrying religious affiliation, the dogmas of a particular group. MR. ROTHSCHILD: Your Honor, I think based on both her education, what she teaches, and what she's written about, while she certainly I don't think would describe herself as a theologian like Jack Haught, these are the kind of terms that people in her field would work with every day and she's certainly worked with as part of her research and writing. THE COURT: To the extent that the question is answered I didn't find the answer to be objectionable, so we won't strike it. So the objection is overruled as it relates to that answer, that question and that answer. BY MR. ROTHSCHILD: Q. Dr. Forrest, were you able to conclude by reading the article who the evangelical scholars were that Mr. Hartwig is referring to? A. He names them. Q. And we'll go to another passage when that occurs and I won't ask you to do that by memory. Matt, could you go to the next highlighted passage? And could you read this passage into the record? A. "In March 1992 a landmark symposium took place at Southern Methodist University in Dallas. Phillip Johnson, Steven Meyer, William Dembski, Michael Behe, and other Christian schol ars squared off against several prominent Darwinists. The topic was Darwinism science, or philosophy. The remarkable thing about the symposium was the collegial spirit that prevailed. Creationists and evolutionists met as equals to discuss serious intellectual questions. Not surprisingly, few issues were resolved, but in today's Darwinist climate, where dissent is frequently written off as religious bias, just getting the issues on the table was an accomplishment." Q. And are the individuals named there, are those the evangelical scholars in the intelligent design movement that Mr. Hartwig was referring to? A. Yes. These are the evangelical scholars to whom he's referring. Q. And is he referring to them by another title as well? A. Christian scholars. Q. And another one? Is he referring to them as creationists? A. Oh, yes. Yes. Q. Who were squared off in debate with what he calls Darwinists or evolutionists? A. Yes. He notes that they are taking opposing sides. Q. This is a good a time as any, are these -- the named individuals, are they important people in the intelligent design movement? A. These are the leaders. These are the people who founded the Wedge Strategy. Q. That's true of Mr. Johnson, Mr. Meyer, Mr. Dembski , and Mr. Behe? A. Yes. That's true of all of them. Q. I think there's one more passage that we have highlighted in there. A. "Creationists are still far from winning, but they believe things are getting better. As Johnson points out, creationist arguments are growing more sophisticated, while more Darwinists are still responding with cliche. Now it's the creationists who come across as asking the hard questions and demanding fair debate." Q. Again when he's referring to creationists, he's referring to those individuals? A. He's talking about those people he named, yes. Q. I think you also said during the qualifications part of your testimony that intelligent design and Pandas make many of the same arguments as prior creationists, is that right? A. Yes. Q. Have you prepared a demonstrative exhibit which addresses that question? A. Yes, I have. Q. Matt, could you pull that chart up? And before we get into the substance, can you describe what you're attempting to demonstrate through this exhibit? A. I made a chart showing the line of development from the young earth scientific creationism of the 1970's through the 1980's to intelligent design creationism in the 1990's to the present. Q. And each page of this exhibit depicts a different argument or theme? A. Yes, each page depicts one aspect that you find in creationism through these many decades, three decades. Q. And underneath the particular argument or theme you have a representative statement on that point? A. Yes. Q. And Your Honor will probably be happy to hear, I'm not going to ask Dr. Forrest to read every one of those statements. We're happy to make them available to you as part of the record, but I'm going to ask her lust to talk about the topic and key points within those statements. So why don't you start with this first comment, argument, or theme, relection of naturalism? A. The first ones comes from 1974, it's again Henry Morris, a well known young earth creationist, and he is relecting naturalism as an explanation. This is typical in creationism to relect naturalistic explanations. Dr. Kenyon in 1986 in his affidavit also relects the, or does not accept the claim that there is a naturalistic origin of life. In 1998 you see Dr. Dembski in a book called Mere Creation relecting naturalism, distinguishing it from creation, and it's clear here that he rejects it for religious reasons because he says that, "As Christians we know naturalism is false. Nature is not sufficient," and this is very common throughout creationism. Q. And based on your reading of creationist intelligent design work, what's the alternative to the naturalism that they're relecting? A. There's only one alternative to a natural explanation, and that's a supernatural explanation. Q. Could you go to the next page of the chart? And Your Honor, after we're through with this exhibit if you'd like to take a lunch break, that would be a good time. THE COURT: All right. Q. Evolution's threat to society, is this a common theme? A. This is also a very common theme. Here you see Mr. Morris in 1974 charging evolution with tending to rob life of meaning and purpose, and I might point out that Phillip Johnson actually goes a little farther and says it does rob life of its meaning and purpose. The second quote is from Duane Frair and Percival Davis, who are the co-authors of Pandas, and this comes from their book 1983, A Case For Creation. They also regard this doctrine of evolution dangerous to society. The third quote comes from the Wedge Strategy document itself and makes the same point, that Darwin portrays human beings not as moral beings but as animals and machines, and what this does is to undermine human moral freedom and moral standards. Q. And we'll talk more about that document later, but why don't we go to the next slide? A. The next slide is about abrupt appearance. This is where life forms appear in the history of earth fully formed. In 4 in Henry Morris's book Scientific Creationism he makes that point with the animals appearing suddenly with no transition of, no evidence of earlier life forms. In Dr. Kenyon's affidavit he says the same thing, you see abrupt appearance of animals in complex form, and in Mr. Kenyon and Percival Davis' book Of Pandas and People, 1993, of course there's the definition of intelligent design as the abrupt appearance of fully formed animals that we talked about earlier. Q. And you called that also special creation? A. That's also called special creation, right. It requires a special intervention by a supernatural deity into the processes of nature. Q. Why don't we go to the next slide? A. This one is about gaps in the fossil record, focusing specifically on the Cambrian explosion. This is a very frequently used target of criticism in evolution theory about the Cambrian fossil. Henry Morris in 1974 pointed out that there's a gap between the one celled microorganisms and the invertebrate phyla of the Cambrian period. I'll repeat that for you. Henry Morris in 1974 points out that there is a very large gap between one celled microorganisms and the mini invertebrate phyla of the Cambrian period, that species appear in the fossil record with no apparent precursors, which he calls no incipient forms leading up to them, and he doesn't anticipate, he forecloses any possibility that further fossil collecting will fill in these gaps. In the next item, this is from Duane Frair and Percival Davis, again from their 1983 book, they're also pointing to what they consider to be gaps in the fossil record, and they attribute these gaps, they explain these gaps, these abrupt things as special activity of God. They believe that that's a reasonable explanation for these gaps in the pre-Cambrian fossil record. The third item of the quote comes from a paper published by Dr. Stephen Meyer in 2004, and he is also making the same criticisms in regard to the record of the Cambrian fossil record. He says that this record implies the absence of clear transitional forms that would connect the Cambrian animals to earlier animals, and likewise he suggests that these gaps are not going to be filled in by simply collecting more fossils, gathering more samples. Q. Dr. Forrest, based on this morning I'm not going to dare to qualify you as a paleontologist, and we will hear from one later on, but can you tell me whether Henry Morris is a paleontologist? A. No, he's not a paleontologist. I believe he's a hydraulics engineer. Q. What about Duane Frair and Percival Davis? A. No, they're not paleontologists, and neither is Dr. Meyer. Q. Thank you. We can go to the next slide. Supernatural design and biochemical complexity. Tell us about those connections. A. Yes, with regard to the supernatural design of biochemical complexities, the general comment in these that unites them is that the complexity of DNA for example simply is not possible through natural processes, that it requires input from outside by a supernatural creator. Henry Morris points this out, he says that the complex systems such as the DNA molecules are not the products of chance. You need a great creator for that. And Dr. Kenyon's 1986 affidavit, you see him pointing out that biomolecular systems require, these complex systems that he's talking about require intelligent design. This has to be put in from the outside, from out, and he's talking here about outside the system of nature. And then a quote from Dr. Behe's book Darwin's Black Box, he also rejects the idea that there is a natural process that could produce biochemical complexity. In fact, if you will look, if you will note he refers to this process as a phantom process, which suggests that he doesn't actually see a natural process that can produce this type of complexity. Q. So this argument from biochemical complexity to a supernatural creator, that's not new to Mr. Behe? A. No, it's not new at all, and again I point out that that's the only conceptual alternative to a natural explanation. If you reject the idea that natural processes could do this, you are of course endorsing the supernatural explanation. Q. And this argument is not new to intelligent design? A. It's not new at all. It's been there for decades. Q. Could you go to the next slide, Matt? This is the heading, "Teach the controversy, alternative theories, strengths and weaknesses of evolution." Tell us what this is about. A. Yes, the intelligent design movement uses very frequently the argument that children should be taught the controversy, that there's a controversy within science itself about the status of evolution, and I really would like to begin with the more recent quotes, because what they mean by teaching the controversy, and these are encapsulated in this quote, both of them, is that children should be taught about intelligent design as an alternative theory to evolution, and that children should be taught the strengths and weaknesses of evolution, and all of these are mentioned in a quote by Dr. Meyer and John Angus Campbell, who is also a fellow for the Center for Science and Culture in March of this year endorsing this position. If you look back in 1973, Duane Gish, who is also another very well known young earth creationist, is essentially saying the same thing. In fact, he says that students should be made aware of the weaknesses of evolution, and he considers teaching them only evolution to be a form of indoctrination. In 1986 you see Dr. Kenyon make the same observation and actually using the term indoctrination. He believes that alternative views, by which he means creation science, should be presented in public school science classes. So this is also a very common theme. It's not new at all. It also includes the argument that students should be taught the evidence against evolution. Q. So when we hear these arguments in relation to intelligent design, it's right out of the creationists' playbook? A. Right out of the creationists' playbook. It's not new at all. MR. ROTHSCHILD: Your Honor, I think we're done with this set of slides, and we can take a break here if that's your preference. THE COURT: All right. Let's do this at this luncture, and we will be in recess then until 1:30. That should give everybody an ample lunch break. We'll reconvene and pick up this witness's testimony at 1:30 this afternoon. MR. ROTHSCHILD: Thank you, Your Honor. (End of volume 1 at 12:09 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 6 (October 5), PM Session, Part 1 THE COURT: All right. We continue then with this witness on direct examination. And, Mr. Rothschild, you may proceed. DIRECT EXAMINATION ( CONTINUED) BY MR. ROTHSCHILD: Q. Good afternoon, Dr. Forrest. A. Hello. Q. Has the intelligent design movement described its strategy as a big tent strategy? And let's make sure we don't talk about college football. A. A big tent with a T, yes. Q. And what do you understand that term to mean as they use it? A. The big tent strategy was developed by Phillip Johnson. It's a strategy to avoid alienating young earth creationists, to convince them to join in the intelligent design movement, and to agree to put off discussion of what they consider devicive issues, such as the interpretation of the Book of Genesis, and to knight around the effort of the intelligent design movement. Q. And this is a term they've used to describe themselves? A. Yes, they've written about it. Q. Matt, could you pull up Exhibit 429, P-429, and highlight the title and author? And actually, if you could actually highlight further down which indicates where this article was first published. Could you read the title into the record, Dr. Forrest, and the author? A. The title of this article is Life in the Big Tent: Traditional Creationism and the Intelligent Design Community, by Paul A. Nelson. Q. And this indicates it was published in 2002 in the Christian Research Journal? A. That's correct. Q. Who is Paul Nelson? A. Paul Nelson is a young earth creationist who is one of the founding members of the Wedge. He's been with the Center for Science and Culture since it was the Center for the Renewal of Science and Culture. He is an integral member of this group. Q. What is this article about? A. In this article, Dr. Nelson is essentially arguing to his fellow -- MR. THOMPSON: Your Honor, objection. The article speaks for itself. MR. ROTHSCHILD: Your Honor, I think this article, first of all, is written by, as Dr. Forrest testified, an important member of the intelligent design movement. This is part of the corpus of intelligent design, and as Dr. Forrest will explain, gives an extremely valuable history of intelligent design. It is again a primary source that is integral to her opinion. THE COURT: That may be true, but that's not Mr. Thompson's objection. His objection is, in effect, you're asking the witness to paraphrase or summarize the article. I'm going to permit the article. It wasn't a hearsay objection. But why don't you go to individual passages rather than have her characterize the article. So the objection is sustained. MR. ROTHSCHILD: I will do that, Your Honor. BY MR. ROTHSCHILD: Q. Have you highlighted passages in this article that you found significant? A. Yes. Q. Matt, could you go to the first highlighted passage? A. This is the synopsis of the article. Quote, Until recently, the majority of active dissenters from neo-Darwinian naturalistic evolution could be classified as young-earth, or what I call traditional creationists. Their dissent could be dismissed as motivated by Biblical literalism, not scientific evidence. While this criticism of traditional creationist is unfair to the actual content of their views, many prominent creationists are outstanding scientists. The absence of a wider community of dissent from Darwinism hindered the growth of scientific alternatives to the naturalistic theory. Such a wider community now exists in the intelligent design, ID, movement. Within the past decade, the ID community has matured around the insights of UC Berkeley Professor Phillip Johnson whose central insight is that science must be free to seek the truth, wherever it lies. The possibility of design, therefore, cannot be excluded from science. This outlook has deep roots in the history of western science and is essential to the help of science as a truth seeking enterprise. Under the canopy of design as an empirical possibility, however, any number of particular theories may also be possible, including traditional creationism, progressive, or old-earth creationism, and theistic evolution. Both scientific and scriptural evidence will have to decide the competition between these theories. The big tent of ID provides a setting in which that struggle after truth can occur and from which the secular culture may be influenced, end quote. Q. Does this synopsis summarize this big tent strategy? A. Yes, it summarizes it. Q. It includes both young-earth or traditional creationists or old-earth creationists? A. Yes, in the big tent. Q. Mr. Nelson indicates they also include proponents of theistic evolution. Have proponents of theistic evolution, in fact, been embraced under intelligent design's big tent? A. No, it has not. In fact the intelligent design movement specifically rejects theistic evolution. Q. Matt, why don't you go to the next passage. A. Quote, The growth of a broader debate about evolution and creation can actually be seen as a boon for those struggling to discern the proper relationship between science and faith, how to understand the Book of Genesis, and how to defend the Christian world view in a hostile secular culture. Life in the big tent of the intelligent design community certainly requires a period of acclamation, but Christians, in particular traditional creationists, should welcome their new ID surroundings. Q. Based on your reading of this article and Mr. Nelson's writing, what did you understand him to mean by traditional creationists? A. He's already defined that as young-earth creationism. Q. And this objective of defending the Christian world view in a hostile secular culture, is that a theme that runs through all forms of creationism? A. That's a very strong theme. That's apologetic, essentially defending Christianity from what they perceive to be a hostile culture. Q. I think that's the first time you used the term apologetics in your testimony. What you just said, is that the definition of apologetics? A. Yes. Q. Is the concept of apologetics a component of the intelligent design movement? A. It's a very strong component. In fact, it's specifically included in the Wedge Strategy. Q. And we'll look at that in a little bit. Why don't you go to the next passage, Matt. A. Quote, Let's begin with some history. The year 1997 marks a noteworthy turning point in the American debate over the science and philosophy of origins. In that year, a long cultural battle that had begun more than a quarter century earlier with Henry Morris and John Whitcomb's classic, The Genesis Flood, in 1961 appeared to many onlookers to have come decisively to an end when the Edwards v. Aguillard decision of the U.S. Supreme Court declared creation-science to be a religious belief, end quote. Q. Dr. Forrest, I'm going to ask you to read a few passages that comprise this history. Does the history that Mr. Nelson sets forth in his article, is it pretty consistent with the history as you have studied the intelligent design movement? A. Yes. Q. Could you go to the next passage? A. Quote, In 1982, Federal Judge William Overton declared the Arkansas balanced treatment law unconstitutional in McLean v. Arkansas Board of Education, but it was the 1997 Supreme Court opinion, Edwards v. Aguillard, that seemed to shut the door permanently on creationism, end quote. Q. Go onto the next passage. A. Quote, The two-model approach to the origin's controversy was now dead, end quote. Q. Just remind us, what is meant by the two-model approach? A. The two-model approach is -- and this was actually referred to in the McLean decision as the contrived dualism. The two-model approach is the view that there are two possibilities for explaining origins. One is creation-science, and the other is evolution. The idea there is that, if evolution can be successfully undermined, creation-science will win the debate by default. Q. If you could just go a little slower for Wendy, that would be helpful. Thanks. I want to go to the next passage, Matt. A. Quote, Edwards v. Aguillard seemingly had ended the public debate over origins. A revolution from an unexpected quarter, however, was about to occur. In 1997 [sic 1987], Phillip Johnson, a professor of law at the University of California, Berkeley, was taking a year's sabbatical in London, England. Every day on the walk to his office, he passed a book shop where Richard Dawkins' The Blind Watchmaker and Michael Denton's Evolution: A Theory in Crisis, were on sale. Curious, Johnson bought the books and read them through. He noticed immediately that the ostensible issues of Edwards v. Aguillard were not the real issues at all, end quote. Q. Go to the next passage. Other Links: The Truth, the Whole Truth, and Nothing but the Truth? A good refutation of Johnson's Darwin on Trial. A. Quote, The creationists in Louisiana never had a chance. Because of the way science was defined in the debate, the very possibility of evidence against Darwinian evolution had been excluded at the outset. Reading the amicus briefs in Edwards v. Aguillard, such as that filed by the National Academy of Science, the most prestigious group of scientists in the nation, Johnson discovered that what had been presented on the ground rules -- as the ground rules of science had tilted the playing field irrevocably in favor of Darwinian evolution. In Darwin on Trial, the influential book that drew out of his 1987 insights, Johnson wrote, quote, The academy does define science in such a way that advocates of supernatural creation may neither argue for their own position nor dispute the claims of the scientific establishment, end quote. Q. And what do you understand Mr. Nelson to mean by the way science was defined in this debate? How was science defined, so to speak, in Edwards v. Aguillard? A. It's defined as naturalistic, remaining within the area of the natural world and seeking explanations. Q. And under those rules, creationists didn't have a chance? A. As Phillip Johnson understood that. Phillip Johnson considers the definition of science as naturalistic to be arbitrary and operari and so that it would exclude supernatural explanations from the very beginning. Q. Could you go to the next passage? A. Quote, Johnson rejected the philosophical dichotomizing. Definitions of science, he argued, could be contrived to exclude any conclusion we dislike or to include any we favor, end quote. Q. Go to the next passage. A. Quote, In June 1993, Johnson invited several of the mostly younger members of that community to a conference at the California beach town of Pajaro Dunes. Present were scientists and philosophers who themselves would later become well-known such as biochemist Michael Behe, author of Darwin's Black Box, 1996, mathematician and philosopher, William Dembski, author of The Design Inference, 1998, and Intelligent Design, 1999, and developmental biologist, Jonathan Wells, author of Icons of Evolution, 2000. Of the 14 participants at the Pajaro Dunes conference, only three, microbiologist Siegfried Scherer of the Technical University of Munich, paleontologist Kurt Wise of Brian College, and me, that would be Paul Nelson, could be seen as traditional creationists, end quote. Q. So Mr. Nelson is acknowledginging he is a traditionalist -- A. Dr. Nelson is, yes. Q. These passages I just asked you to read, you agree, this is an accurate history of how the intelligent design movement arose? A. This is consistent with everything I've seen, yes. Q. Creation-science was ruled unconstitutional in Edwards? A. Yes. Q. And then Mr. Johnson came up with with a new strategy for arguing for creationism? A. Yes. Dr. Nelson actually gives Phillip Johnson credit for reviving the debate. After they thought that the two-model approach was dead, he gives Johnson credit for reviving the debate about origins. Q. His new approach was to try to redefine science from how the NAS understood? A. Yes. He rejects the definition of science as naturalistic. Q. And then he gathered around him these figures that are identified here, Behe, Dembski, and Wells, to take up that project? A. Yes. As I understand it, this was a conference that Professor Johnson called in order to do this, to draw these people together, and begin to execute what would become the Wedge Strategy. Q. Matt, could you go to the next passage, please? And could you highlight the heading of this part of Mr. Nelson's article? And what is the heading there? A. This is a subheading in the article. It's God's Freedom and the Logic of Design. Q. And could you highlight the passages, Matt, that Dr. Forrest did in this section? A. Quote, Johnson saw that allowing for the possibility of design as special divine action, for instance, God creating human beings directly, meant that one must also allow for other possibilities, such as God electing, if he so chose, to use an evolutionary process that wasn't self-designed. Quote, I believe, Johnson wrote, that a God exists who could create out of nothing if he wanted to do so. But he might have chosen to work through a natural evolutionary process instead, end Johnson's quote. God could have created everything in six 24-hour days or not. The fundamental point is to allow for the possibility of design. The scientific narrative of design, when God acted, and how, might capture any number of competing theories, end quote. Q. Any doubt about who Mr. Johnson is declaring the intelligent designer is, according to Mr. Nelson? A. No. As Dr. Nelson recounts, the designer is specifically named as God. Q. Nothing about space aliens? A. No, space aliens are -- Dr. Dembski, in 1992, actually wrote an article in which he stipulated that he was not talking about space aliens, he was talking about a supernatural transcendent designer. Q. Nothing about super time travelers here? A. No, nothing like that. Q. Matt, could you go to the next passage. A. Quote, The promise of the big tent of ID is to provide a setting where Christians and others may disagree amicably and fruitfully about how best to understand the natural world as well as scripture, end quote. Q. Are you aware of any other scientific theories in which understanding of scripture is central to the enterprise? A. Not as science is currently practiced, no, I'm not aware of that. Q. Has Mr. Johnson, in addition to the article we looked at very early in your testimony where he defined intelligent design as theistic realism, has he written other articles or books that suggest, that for him intelligent design is a religious proposition? A. Yes. Q. And made statements as well to that effect? A. Yes. In fact, he made a statement in, I think, 1996, that the intelligent design debate is not about science, it's about religion and philosophy. Q. I'd like to have you look at Exhibit P-524. And if you could illuminate the title and author. What is this article called? A. This is called How the Evolution Debate Can be Won. It's by Dr. Phillip Johnson. Q. And do you recognize this document? A. Yes. This is 1999. This is the text of a speech that Professor Johnson gave at a conference that was called by Reverend D. James Kennedy of Coral Ridge Ministries in Florida. It's an annual conference that Dr. Kennedy calls. It's called the Reclaiming America for Christ Conference. Q. Have you highlighted passages in this article? A. Yes. Q. Okay. Can you go ahead and do that, Matt? A. Quote, To talk of a purposeful or guided evolution is not to talk about evolution at all. That is slow creation. When you understand it that way, you realize that the Darwinian theory of evolution contradicts not just the Book of Genesis, but every word in the Bible from beginning to end. It contradicts the idea that we are here because a creator brought about our existence for a purpose. That is the first thing I realized, and it carries tremendous meaning, end quote. Q. Does this fairly summarize Mr. Johnson's opposition to the theory of evolution? A. This is very characteristic of it. Q. We'll go to the next passage, Matt. A. Quote, I have built an intellectual movement in the universities and churches that we call The Wedge, which is devoted to scholarship and writing that furthers this program of questioning the materialistic basis of science. One very famous book that's come out of The Wedge is biochemist Michael Behe's book, Darwin's Black Box, which has had an enormous impact on the scientific world, end quote. Q. According Mr. Johnson, Mr. Behe's work is part of his project? A. It'ss a very prominent part of the Wedge Strategy. Q. Could you go to the next passage, Matt? A. Quote, Now the way that I see the logic of our movement going is like this. The first thing you understand is that the Darwinian theory isn't true. It's falsified by all of the evidence and the logic is terrible. When you realize that, the next question that occurs to you is, well, where might you get the truth? When I preach from the Bible, as I often do at churches and on Sundays, I don't start with Genesis. I start with John 1:1. In the beginning was the word. In the beginning was intelligence, purpose, and wisdom. The Bible had that right. And the materialist scientists are deluding themselves, end quote. Q. So Mr. Johnson finds support for intelligent design in the Bible? A. He specifically supports it in John 1:1. Q. Is he the only intelligent design leader who finds that intelligent design is derived from the book of John? A. No, Dr. Dembski has very prominently cited the Book of John as the foundation of intelligent design. Q. What about Charles Thaxton? Has he done that? A. Yes, he has. Dr. Thaxton wrote a book with Walter Bradley and Roger Olsen published by the Foundation for Thought and Ethics in 1984. It's called The Mystery of Life's Origins. In the epilogue of that book, he argues for special creation, supernatural creation by a creator beyond the cosmos. Near the end of that epilogue chapter, he cites someone named P Fong. That's initial P Fong. And the citation of P Fong called upon the (inaudible) prologue, which is the first 18 verses of the First Book of John. Q. Could you pull up Exhibit P-355? Do you recognize this document? A. Yes. Q. What is it? A. This is an article from World Magazine about Dr. Phillip Johnson. It is dated December 2003. Q. And what is World Magazine? A. World Magazine is a religious magazine. Q. Matt, could you go to the first highlighted passage? A. Quote, But once someone accepts the fact that random evolution couldn't produce life on earth, it has to have developed some other way. Quote by Johnson, I look for the best place to start the search, Mr. Johnson says, and I found it in the prologue to the Gospel of John. In the beginning was the word. And I ask this question, does scientific evidence tend to support this conclusion or the contrary conclusion of the materialists that in the beginning were the particles, end quote. Q. So again, the reference to the Book of John? A. Yes. Q. And is it fair to say, Mr. Johnson starts with the Book of John and looks for scientific evidence to support it? A. Actually, he talks about having -- upon rejecting natural selection as an explanation, he looked around for the place to start in finding an alternate explanation. He says he found it in the Book of John. Q. Then tried to gather the scientific evidence that would support it? A. Well, he regards this as true scientifically. Q. Could you go to the next passage, please? A. Quote, Mr. Johnson notes that if we start with with the Gospel's basic explanation of the meaning of creation, we see that it is far better supported by scientific investigation than the contrary. At this point, we haven't proved the Bible's claims about creation, but we've removed a powerful obstacle in the way of such belief. And all I really want to do with the scientific evidence is to clear away the obstacle that it presents to a belief that the creator is the God of the Bible, end quote. Q. Would you go to the next passage, Matt? A. Quote, It's a great error Christian leaders and intellectual leaders have made to think the origin of life, just one of those things scientists and professors argue about, Mr. Johnson says. The fundamental question is whether God is real or imaginary. The entire way of thinking that underlies Darwinian evolution assumes that God is out of the picture as any kind of a real entity. He points out that, it is a very short step from Darwinism and science to the kind of liberal theology we find in many of our seminaries that treats the resurrection as a faith event, something that didn't happen, but was imagined by the disciples, and assumes that morality is something human beings may change from time to time as it's convenient to change it, end quote. Q. Could you go to the next passage, Matt? A. Quote, Resistance from some Christians to intelligent design has been one of Mr. Johnson's biggest surprises and greatest disappointments. He expected many scientists to attack him because their careers depend on Darwinism. This is a quote by Johnson. The more frustrating thing has been the Christian leaders and pastors, especially Christian college and seminary professors. The problem is not just convincing them that the theory is wrong, but that it makes a difference. What's at stake isn't just the first chapter of Genesis, but the whole Bible from beginning to end, and whether or not nature really is all there is, end quote. Q. I think we have one more passage in this document. A. Quote, Mr. Johnson explains, Once God is culturally determined to be imaginary, then God's morality loses its foundation and withers away. It may stay standing for a historical moment without a foundation until the winds of change blow hard enough to knock it over like a cartoon character staying suspended for an instant after he runs off the cliff. We are at the end of that period now, end quote. Q. Fair to say that this is the whole shooting match for Mr. Johnson? He's challenging evolution because of God's morality and the truth of the Bible? A. Yes, he regards the -- he regards evolution as a threat to the Bible in its entirety and as a threat to the moral fabric of American culture. Q. We have one more document associated with Mr. Johnson. Matt, could you pull up the Exhibit P-379? Can you tell me what this document is? A. This is a partial transcript of a speech that Mr. Johnson made in June of 2001 at a conference in Kansas. Q. Just before we go on, Kansas is another place where the evolution creation controversy is quite alive? A. Very much alive, yes. Q. And it indicates this is from his speech on June 29th, 2001? A. Yes, these are excerpts from his speech that he entitled The State of the Wedge. Q. Matt, could you go to the first highlighted passage? Just -- he's saying, one of the goals of his movement is to unify the religious world? A. Correct. Q. Strange objective for a scientific proposition? A. Science doesn't attempt to do anything of that kind. Q. Would you go to the next passage? A. Quote, It would involve the simple question of creation. Do you need a creator to do the creating or don't you? What does the evidence of science tell us about that when it is viewed without prejudice? Now, of course, that's the tough thing, isn't it? When it is viewed without prejudice, because you see, the immediate response will be that the evidence of science is viewed through the conclusive prejudice that natural causes can do and did do the whole job. End of story, end quote. Q. So the prejudice he's complaining about is methodological naturalism? A. Yes. Q. Go onto the next passage. A. Quote, And so we thought the religious people ought to challenge that. The people of God ought to be unwilling to accept that kind of a dogmatic decision by definition, end quote. Q. I think we have one more passage, Matt. A. Quote, This is a way of phrasing the issue that ought to bring together Protestants of different views, young-earth believers and the scriptures, old-earthers who interpret Genesis differently, even the people who take the whole thing allegorically. Again, they should have a common interest in the issue. In the beginning was the word. In the beginning God created. True or false. End quote. Q. He's trying to situate all of these different creationists, including the intelligent design creationists around the Book of John? A. Yes, around the Book of John. Q. Dr. Forrest, you've referred on quite a few occasions during your testimony to the Discovery Institute and the Center for Science and Culture. When was the Discovery Institute founded? A. The Discovery Institute itself, which is a think tank, was founded in 1990. Q. And where is that located? A. It's in Seattle, Washington. Q. And then there was the center that was started. When was that? A. Yes, the Center for the Renewal of Science and Culture was established as an arm of the Discovery Institute in 1996. Q. And does it still go by that name? A. No, the name has been shortened to Center for Science and Culture. Q. How does the center fund -- is the center devoted to the proposition of intelligent design? A. Yes, it exists expressly to promote intelligent design. Q. How does the center fund its operations? A. Mostly through donations. Q. Are there -- are you aware of who the major donors are to the center? A. Yes. My research revealed that the major donors were the Stewardship Foundation, the McClellan Foundation, and a gentleman by the name of Howard Ahmanson. Q. The two foundations you named, what is your understanding of what their mission is? A. Both of these are religious organizations with religious or evangelical missions, as they state on their websites. Q. Do they state they have an objective of supporting scientific research generally? A. No, they support missionss which are consistent with the requirement of spreading of Gospel, or what is called the great commission, and that is specifically stated on the website. Q. What is the mission of the Center for Science and Culture? A. The mission of the Center for Science and Culture, as they state, is to replace materialistic science with science that is consonant with their Christian and theistic convictions. Q. Is there a document that states that? A. There is. Q. And is that the Wedge document that you referred to earlier in your testimony? A. It is. The formal title of that document is The Wedge Strategy. Q. Could you pull up the Exhibit P-516, please? Is that the cover page of The Wedge? A. That is the cover page, yes. Q. And it indicates that it is from the Center for the Renewal of Science and Culture, the Discovery Institute? A. Right. Q. And has the Discovery Institute acknowledged, yes, this is our product? A. They have. They acknowledged it in 2002. Q. Is the Wedge Strategy document particularly important to your understanding of the intelligent design movement? A. It's the best most concise statement of what the what the movement is about in its entirety. It lays out the strategy and goals for the next 20 years. Q. Have you highlighted important parts of the Wedge document for your testimony here today? A. Yes. Q. What I'd like you to do is, just walk us through what you considered the important parts of the document and explain why they're important to your opinion about intelligent design? A. Okay. Matt, could I have the first slide, please? This is the first page of the Wedge Strategy, and this is the opening paragraph of it. Quote, The proposition that human beings are created in the image of God is one of the bedrock principles on which western civilization was built. This is the opening statement, and it states very well the foundational belief behind the intelligent design movement and the reason that they have rejected the theory of evolution. The next slide, please. Quote, Debunking the traditional conceptions of both God and man, thinkers such as Charles Darwin, Karl Marx, and Sigmund Freud portrayed humans not as moral and spiritual beings, but as animals or machines who inhabited a universe ruled by purely impersonal forces and whose behavior and very thoughts were dictated by the unbending forces of biology, chemistry, and environment. As you can see, Darwin here is bundled with two other thinkers, Karl Marx and Sigmund Freud, and there is a reason for that. Charles Darwin is the one, the scientist whose theories are the specific target of the intelligent design movement. And what they are saying here is that, Darwin is a source of a type of biological determinism which precludes the existence of a spiritual side of human life and, therefore, takes away our spiritual dimension. Karl Marx represents historical determinism. Sigmund Freud represents psychological determinism. And all of these thinkers are regarded as materialists who have contributed to the degradation of western culture. Next slide, please. Quote, The cultural consequences of this triumph of materialism were devastating. Materialists deny the existence of objective moral standards claiming that environment dictates our behavior and beliefs. Such moral relativism was uncritically adopted by much of the social sciences, and it still underguards much of modern economics, political science, psychology, and sociology, end quote. This is, of course, an objection to materialism. This is not new. Creationists typically object to materialism. And it also, they also object to moral relativism, the idea that moral standards are less than absolute. You can also see here that they regard the effect of evolution as pervasive have throughout all of the disciplines, which include the social sciences as well. Next slide, please. Quote, Discovery Institute's Center for the Renewal of Science and Culture seeks nothing less than the overthrow of materialism and its cultural legacies, end quote. This gives a very good indication of the comprehensive program that the Discovery Institute's Center for Science and Culture has instituted. They would like to completely change the way science is understood and to completely reverse the effect of what they call scientific materialism on American culture. And as they understand it, the only way they can do that is through renewal, which means basically renewing the religious foundations of American culture. Next slide, please. Quote, The center explores how new developments in biology, physics, and cognitive science raise serious doubts about scientific materialism and have reopened the case for a broadly theistic understanding of nature, end quote. What this indicates is that the intelligent design creationists are using the developments of modern science and reinterpreting them in such a way as to support their view that the supernatural can be a scientific explanation. I might point out that this was original wording on an early website, which actually helped me to authenticate this document. But on that early website, it says, have reopened the case for the supernatural. It was specifically stated. That term was used. Next slide, please. Quote, The center is directed by Discovery Senior Fellow, Dr. Stephen Meyer, an associate professor of philosophy at Whitworth college, end quote. Q. Can you situate, I know you mentioned Dr. Meyer already in your testimony, but can you situate him in the intelligent design movement? A. He is one of the founders of the Wedge Strategy. He is one of the very early members of the -- one of the founding members of the Center for the Renewal of Science and Culture. Dr. Meyer met Professor Johnson in 1987 when they were both in England. And Professor Meyer took back a paper that Professor Johnson had written and introduced it to some of the other people who were interested in intelligent design. Q. Did he have thinking to do with the drafting of Pandas or the writing of Pandas? A. Yes, he's the co-author of the note to teachers at the end, along with Mark Hartwig, who we referred to earlier. Q. And as he also written an article called The God Hypothesis about intelligent design? A. Yes, he has. Q. Won't you continue? A. Next slide, please. This is a representation of the phases. The Wedge Strategy is to take place in three phase, which they -- the document says that these phases are roughly, but not strictly, chronological. Chronologically, this is how they work. Phase 1, scientific research, writing and publicity. Phase 2, publicity and opinion making. Phase 3, cultural confrontation and renewal. My research shows that they have really executed virtually every aspect of these phases, except the first one. Scientific research was supposed to be the foundation of the Wedge Strategy, but no meaningful scientific research has been produced. They have, however, done a great deal of writing and a great deal of publicity. A very strong component of the Wedge Strategy is cultivation of the media. The third phrase is, ultimately their goal is to renew American culture by confronting secular cultures, scientific materialism. Q. What did you do to examine the question of whether they have, in fact, produced science? A. I researched this on the scientific data bases that would contain all of the articles published in the peer review journals. Q. What did you find? A. I'll give you an example of -- the biggest data bay is medline. And I did a key word and subject searches for peer reviewed articles in science journals using intelligent design as a biological theory. Q. And did you find anything? A. I found nothing. Q. And when you say found nothing, did you find any peer review -- did you find any peer reviewed articles in which there was used data research? A. I'm sorry. I couldn't hear your question. Q. Did you find any articles in the peer review literature using original data or research? A. Not about intelligent design, no, none. Other Links: Meyer's Hopeless Monster A detailed debunking of Meyer's article. The "Meyer 2004" Medley A list of many links to materials about the paper. Q. Are you aware that there is one article by Steven Meyer that was published in a peer review journal? A. I am. Q. Have you read that article? A. I have. Q. You're aware there's a controversy around that article? A. Yes, that article also invokes the idea of intelligent design. Q. Now putting aside the controversy, why doesn't Dr. Meyer's article qualify as a peer reviewed article presenting data and research in support of intelligent design? A. Well, first, Dr. Meyer is not a scientist. He's not a paleontologist. Second, the article contains no new data. He presents no new data. He calls it a review essay. What he does is, review the scientific literature, and he's attempting to reinterpret it in such a way that it supports his thesis of intelligent design with respect to the Cambrian fossils that we mentioned earlier. That's what this article is about. Q. And again, reinterpreting the Cambrian record, he's not doing that from the prospective of an expert in paleontology? A. No, he has no credentials in paleontology. He's not a scientist. Q. Have members of the intelligent design movement admitted that they are lagging behind on the phase of scientific research? A. Yes, they have admitted it. Q. Matt, could you pull up the Exhibit P-410? And this is actually the cover of a magazine. Can you tell us what this is that is? A. This is the cover of a magazine called Touchstone: A Journal of Mere Christianity. This is the July/August 2004 issue. The special title of this issue is Darwin's Last Stand, a special issue of Darwinism, naturalism, and intelligent design. Q. And what was contained in this magazine? A. There were articles by intelligent design supporters, and most prominently, an interview with the leaders of the intelligent design movement. Q. And I'd actually like to look at that interview. Matt, could you turn to the cover page of that interview? And what is that called, Dr. Forrest? A. The title for this interview is called The Measure of Design. Q. And some of the people who were interviewed included Phillip Johnson, William Dembski, Paul Nelson? A. Yes, Phillip Johnson, Dr. William Dembski, Dr. Paul Nelson, and several others. Q. And, Matt, could you highlight the answers given by Paul Nelson that Dr. Forrest asked you to highlight? And can you tell us what Mr. Nelson is talking about here? A. Would you like me to read that? Yes, this is Dr. Nelson. Quote, This is in response -- by the way to a question, so that you'll understand the context of it. The question was, Is intelligent design just a critique of evolutionary theory or does it offer more? Does it offer something that human kind needs to know? This is his answer. Quote, It offers more, but demonstrating that is going to be a long-term challenge. Science in the key of design, if you will, is a melody that we are going to have to teach others to hear and play. First, of course, we have to master it ourselves. Easily, the biggest challenge facing the ID community is to develop a full-fledged theory of biological design. We don't have such a theory right now, and that's a real problem. Without a theory, it's very hard to know where to direct your research focus. Right now, we've got a bag of powerful intuitions and a handful of notions such as irreducible complexity and specified complexity, but as yet, no general theory of biological design, end quote. Q. Dr. Forrest, the school district and school board in Dover sent a newsletter to the Dover community which told the citizens of Dover that intelligent design is a scientific theory. Is there any way you can reconcile that with Mr. Nelson's statements? A. There's no way to reconcile that at all. Q. Matt, could you pull up Exhibit 354? Do you recognize this document? A. Yes, that's the key notes -- it's called Becoming a Disciplined Science, Prospect, Pitfalls, and Reality Check for ID by William A. Dembski. That is a keynote address that Dr. Dembski delivered at a conference in October 2002 called the RAPID Conference. That RAPID is an acronym for Research And Progress in Intelligent Design. And he is here assessing the state of intelligent design in this speech. Q. Matt, could you go to the highlighted passage to see what Mr. Dembski said about this subject? A. Quote, Because of ID's outstanding success at gaining a cultural hearing, the scientific research part of ID is now lagging behind, end quote. Q. Consistent with the way you portrayed the Wedge document, they're moving full steam ahead on cultural confrontation and publicity, but not so much on scientific research? A. That's correct. Q. And one more exhibit on this topic. Matt, could you pull up P-473? Do you recognize this document? A. Yes, this is a recent Seattle Times article about the intelligent design movement. Q. Matt, could you highlight the title? Thank you. Could you read that into the record? A. The title of this article from March 31, 2005, is Does Seattle Group Teach the Controversy or Contribute to It? Q. And when they're talking a Seattle group, who is this article talking about? A. The Center for Science for Culture, the intelligent design people there. Q. Matt, could you pull up the highlight passage? And there is a reference to a Meyer. Who is the Meyer? A. That's Dr. Stephen Meyer? Q. What did he say? A. Quote, The school board in Dover, Pennsylvania, however, got it wrong, Meyer said, when it required instruction in intelligent design. The matter is now in court. Intelligent design isn't established enough yet for that, Meyer says. Q. And based on your reading of the article, what isn't established enough? A. It isn't established enough as a science for anyone to teach it. Q. This is coming from the director of the science enter for science and culture? A. Coming from the director and one of the founding members of the Wedge. Q. Why don't we go back to the Wedge, Doctor? And, Matt, could you highlight the next passage there Dr. Forrest requested? A. These are the governing goals. I'll read these. Quote, To defeat scientific materialism and its destructive moral, cultural, and political legacies; to replace materialistic explanations with the theistic understanding that nature and human beings are created by God. These are the general goals which are, of course, stated in the opening paragraph of the opening passages that I read. They would like to completely reverse what they regard as the deleterious effects of scientific materialism on American culture. It's undermining of religion. Q. Next slide, please. A. This is another goal. Q. Just to be clear. Could we go back to that for a second, Matt? These are the only two governing goals that have been listed? A. These are the two governing goals, that's correct. Q. Not a lot of science there? A. No, there's no science there. Q. Can you go on, Matt? A. This is another of their -- I think this is one of their five year goals. To see -- quote, To see design theory permeate our religious, cultural, moral, and political life. It's pretty clear here that their goal is not scientific, but rather religious, cultural, moral, and political. Next slide, please. This is under their five year objectives. This one says, quote, Ten states begin to rectify ideological imbalance in their science curricula and include design theory. This goal makes it clear that they do want design theory included in the science curriculum, and, of course, Dover is an example of that at the local level. Next slide. Another goal, one of their activities that they list that they intend to carry out, an important activity is, quote, alliance billing, recruitment of future scientists and leaders, and strategic partnerships with think tanks, social advocacy groups, educational organizations and institutions, churches, religious groups, foundations, and media outlets, end quote. Again, there's a very strong component. One of the specific goals is to form alliances with churches, which scientific organizations are not known to do, but you can also see again that cultivating media outlets is a anothe recurrent component in the Wedge Strategy. Next slide. This is a very important goal. It's the goal of spiritual and cultural renewal, which really represents phase 3 of the strategy that was entitled Cultural Confrontation and Renewal. Quote, spiritual and cultural renewal. Main line renewal movements begin to appropriate insights from design theory and to repudiate theologies influenced by materialism. Q. What do you understand main line renewal movements refer to? A. There are movements within some of the main line churches, for example, in the Presbyterian Church USA in which a conservative faction within a church is trying to force it back toward a more conservative, more traditional understanding of scripture. Q. Does that include a literal interpretation? A. In some cases, yes, I think it is. Shall I continue? Q. Please. A. The next item is major Christian denominations defend denominations, defend traditional doctrine of creation and repudiate Darwinism. This is another goal. And they actually did succeed in getting a statement from the now deceased director of the Lutheran Church repudiating evolution. The next goal is seminaries increasingly recognize and repudiate naturalistic presuppositions. Very strong component of the Wedge Strategy is to change the way future ministers are educated in seminaries. They regard seminary education in the main line denominational seminaries as too accommodating to modern science. And then the last goal is positive uptake in public opinion poles on issues such as sexuality, abortion, and belief in God. That's a rather amorphous goal. I'm not sure what their aims are there. Next slide, please. This is a summary of their five year strategic plan. Quote, The social consequences of materialism have been devastating. As symptoms, those consequencess are certainly worth treating. However, we are convinced that in order to defeat materialism, we must cut it off at its source. That source is scientific materialism. This is precisely our strategy. If we view the predominant materialistic science as a giant tree, our strategy is intended to function as a wedge that, while relatively small, can split the trunk when applied at its weakest point. The very beginning of this strategy, the thin end of the Wedge was Phillip Johnson's critique of Darwinism begun in 1991 and Darwinism on Trial and continued in Reason in the Balance and Defeating Darwinism by Opening Minds. Those are Professor Johnson's books. Michael Behe's highly successful Darwin's Black Box followed Johnson's work. We are building on this momentum, broadening the wedge with a positive scientific alternative to materialistic scientific theories, which has come to be called the theory of intelligent design, ID. Design theory promises to reverse the stifling dominance of the materialistic's worldview and to replace it with a science consonant with Christian and theistic convictions, end quote. Q. Michael Behe is an extremely important part of this strategy? A. He is very important. He is an integral part of the Wedge Strategy. Q. And Darwin's Black Box was the book where he introduced the concept of irreducible complexity? A. Yes, the book is centered around that. Q. He argues for intelligent design? A. He argue for intelligent design. And he also argues in the last chapter for admitting the supernaturals as a scientific explanation, that that should be done. Q. Has he made that same argument for intelligent design and the supernatural creator in peer reviewed scientific literature? A. Professor Behe has not done that. Q. Does he make presentations about intelligent design? A. Not at science meetings. He has been quoted as saying he does not think scientific meetings are the proper venue for discussing intelligent design. Q. What venues has Professor Behe chosen? A. He has presented talks on intelligent design at numerous conferences and at religious gatherings and at numerous churches. Q. Science consonant with Christian and theistic convictions, not a normal description of science? A. That is certainly not the way practicing scientists speak of what they're doing. Q. And fair to say that their goal is a science consistent with a particular religious viewpoint? A. Yeah. Specifically here, it says, Christian. This is very much understood in the minds of this movement's leaders as a Christian effort. Q. Please continue. A. Next slide, please. Quote, Alongside a focus on influential opinion makers, we also seek to build up a popular base of support among our natural constituency, namely Christians. We will do this primarily through apologetics seminars, end quote. Again, you see the specific stipulation that their primary constituency is Christians. They include here specifically the element of apologetic seminars, which they have held. Professor Dembski has conducted such seminars. And apologetics, as I stated earlier, revolves around -- it's the development of arguments to defend Christianity against what is perceived as hostile attacks on Christianity. Q. Dr. Forrest, you obviously, in many of the writings that you reviewed, that intelligent design, in your view, is a religious proposition, and that's reflected in the writings? A. Yes. Q. If it was only presented as a religion proposition and not as a scientific proposition, would you find it objectionable that it's being presented in religious journals and churches and the like? A. If it were presented up front as a religious proposition, I would have no problem with that whatsoever. Q. But it is being represented as a scientific proposition? A. It is being represented as science. Q. Please continue. A. This is from the last phase, phase 3, which was entitled Cultural Confrontation and Renewal. Quote, Once our research and writing have had time to mature, and the public prepared for the reception of design theory, we will move toward direct confrontation with the advocates of materialistic science through challenge conferences and significant academic settings. We will also pursue possible legal assistance in response to resistance to the integration of design theory into public school science curricula, end quote. There are two significant references here. The first -- several actually. The first is that they're indicating that they were going to start this third phase once their scientific research had matured. This third phase actually began immediately. And one -- an example of the kind of confrontation we're talking about here is conferences on the campuses of universities where they appear on the platform with evolutionary scientists whose materialistic views, as they put it, they intend to confront. And there have been several of these conferences. The other indication here that is significant is that they specifically state that they intend to integrate design theory into the public school science curriculum and that they are anticipating legal problems because they were planning for legal assistance in that event. Q. Has the Discovery Institute been a leader in the intelligent design movement? A. Yes, the Discovery Institute's Center for Science and Culture. Q. And are almost all of the individuals who are involved with the intelligent design movement associated with the Discovery Institute? A. All of the leaders are, yes. Q. Mr. Johnson? A. Mr. Johnson is the advisor. He's held that position as advisor. He's listed that way on the website. Q. Steven Meyer? A. Steven Meyer is the director. Q. And Michael Behe? A. Michael Behe is a senior fellow. Q. Scott Minnich? A. Scott Minnich is a fellow. Q. Nancy Pearcey? A. Nancy Pearcey is a fellow. Q. Dean Kenyon? A. Dean Kenyon is a fellow. Q. Paul Nelson? A. Paul Nelson is a fellow. Q. Jonathan Wells? A. Jonathan Wells is a fellow, in fact one of the earliest ones along with Dr. Behe and Dr. Nelson. Q. Is Jonathan Wells a scientist? A. He is by training. He has a Ph.D. in biology. Q. Has he -- does he practice science? A. No, not at all. Q. Has he explained why he pursued his degree, Ph.D. in biology? A. Yes, he has explained it. As Dr. Wells explains it, he hasn't -- he had a first Ph.D. in religious studies from Yale. He also attended the Unification Theological Seminary, which is the seminary in the Unification Church of which he's a member, and that church is led by the Reverend Sun Myung Moon. Q. I'm sorry. Continue, Dr. Forrest. A. He has explained that the Reverend Moon urged him to go back to school to get a Ph.D. in biology so that he could, as Dr. Wells puts it in his own words, so that I could devote my life to destroying Darwinism. Q. And what activities has he carried out in pursuit of that goal? A. He has promoted intelligent design full-time for the Discovery Institute's Center for Science and Culture. He's written a book entitled Icons of Evolution. Q. Has that book also been made into a video? A. Yes, there is a video of the same title. Q. And one last individual, William Dembski. Is is he affiliated with the Discovery Institute? A. Yes, he's one of the founding members of the Center for the Renewal of Science and Culture, one of the founders of the Wedge Strategy. Q. What else do you know about Dr. Dembski? A. Dr. Dembski has a Ph.D. in philosophy, a Ph.D. in mathematics, and he also has a divinity degree from Princeton Theological Seminary. He is presently employed at the Southern Baptist Theological Seminary in Louisvile, Kentucky, where he has the Center for Science and Theology, I believe, is the current name of it. He has written a number of books about intelligent design. Q. Has he ever described his work on the issue of intelligent design as Christian apologetics? A. Yes, in fact that's one of the ways in which he has described it. It's a primary factor in his involvement in the intelligent design movement. He has described it that way himself. Q. Has he actually written a book about apologetics? A. Yes, there is a book that he edited -- he co-edited a book with another of his Center for Science and Culture fellows, J. Wesley Richards. That book is entitled Unapologetic Apologetics. That is a book of essays, some of which Dr. Richards and Dr. Dembski wrote. These essays were written by them and their classmates when they were students at the Princeton Theological Seminary, and I believe it was in 2001 that Dr. Dembski edited these essays and published them as a book entitled Unapologetic Apologetics. Q. Has Dr. Dembski written articles and written in his books about intelligent design in a way that suggests that, for him, it is a religious proposition? A. Yes, he has. Q. Matt, could you pull up Exhibit P-386? Could you highlight the title and author and date? Could you read that into the record? A. This title says, Intelligent Design's Contribution to the Debate Over Evolution: A Reply to Henry Morris, by William A. Dembski, 1 February 2005. Q. And Henry Morris, as you described him, is sort of the grand-daddy of modern creationists? A. He is. In fact, there is a line in this essay in which Dr. Dembski credits with Henry Morris with his, Dr. Dembski's, becoming a design theorist. Q. Matt, could you go to the next passage? A. Quote, Dismantling materialism is a good thing. Not only does intelligent design rid us of this ideology which suffocates the human spirit, but in my personal experience, I found that it opens the path for people to come to Christ. Indeed, once materialism is no longer an option, Christianity again becomes an option. True, there are then also other options, but Christianity is more than able to hold its own once it is seen as a live option. The problem with materialism is that it rules out Christianity so completely that it is not even a live option. Thus, in its relation to Christianity, intelligent design should be viewed as a ground clearing operation that gets rid of the intellectual rubbish that for generations has kept Christianity from receiving serious consideration. Q. Is this representative of Dr. Dembski's views on the purpose for intelligent design? A. Very much so. In fact, he stated in other places, most notably in remarks he made to a meeting of the national religious broadcasters, that the chief obstacle for people to come to Christ was Darwinian naturalism. Q. Matt, could you pull up Exhibit 359? Do you recognize this document? A. Yes, this is an essay written by Dr. Dembski entitled What Every Theologian Should Know About Creation, Evolution, and Design. I believe this was written in about 1995 or 1996. Q. Matt, can you go to the first highlighted passage? A. Are you ready for me to read this? Q. Sure, go ahead. A. The title is What Every Theologian Should Know About Creation, Evolution, and Design. Quote, From its inception, Darwinism posed a challenge to Christian theology. Darwinism threatened to under the church's understanding of creation and therewith the understanding of the origin of human life, end quote. Q. Matt, could you go to the next passage, please? A. Quote, First off, design is not young-earth creationism. This is not to say that there are no young-earth creationists who are also design theorists. Paul Nelson and Siegfried Scherer come to mind. For the sake of argument, design theorists are willing tacitly to accept the standard scientific dates for the origin of the earth and the origin of the universe; that is, i.e., 4 to 5 billion years for the earth, 10 to 20 billion years for the universe, and reason from there. The point is that, design theory does not stand or fall with what age one assigns to the universe, end quote. Q. Tacit acceptance. Is that the way most of the scientific community treats the age of the earth? A. No, the scientific community doesn't hesitate to acknowledge the age of the earth as several billion years old. Q. Is this an example of the big tent proposition? A. Yes, this is an example of the big tent strategy in which the desire is not to alienate young-earth creationists. They simply don't want to discuss the issue of the age of the earth. They want to defer that until intelligent design reaches the goals that they have set out. Q. Matt, could you go to Exhibit 390, please? Do you recognize this document? A. Yes, this is Dr. Dembski's book. I believe it's 1998. The title is Intelligent Design, The Bridge Between Science and Theology. Q. Matt, could you go to the highlighted passage in that document? A. Actually, I think this book is 1999. Quote, The point to understand here is that Christ is never an addendum to a scientific theory, but always a completion. Q. Matt, could you go to Exhibit 394? Do you recognize this cover page here? A. Yes, that's one of Dr. Dembski's recent books entitled The Design Revolution: Answering the Toughest Questions About Intelligent Design. Q. Could you highlight, go to the highlighted passage? This is on page 22 of the book. Could you highlight that? A. Quote, Theism, whether Christian, Jewish, or Muslim, holds that God by wisdom created the world. The origin of the world and its subsequent ordering thus result from the designing activity of an intelligent agent, God. Naturalism, on the other hand, allows no place for intelligent agency, except at the end of a blind, purposeless, material process, end quote. Q. The tough question is, who is the intelligent designer? Do we know what Dr. Dembski's answer is? A. This is a book about intelligent design, and he has specifically named the intelligent designer as God. Q. And finally, could you go to Exhibit P-357? Do you recognize this cover page here? A. Yes, this is the cover page to the July/August 1999 issue of Touchstone, a journal of mere Christianity. This was a special issue devoted exclusively to intelligent design. This issue was later published as a book called Signs of Intelligence. And this is the issue five years ago of the anniversary issue, July/August, 2004. Q. Matt, could you go to the cover page of the article by Dr. Dembski and highlight the title? Could you read that? A. The title of Dr. Dembski's article is Signs of Intelligence, A Primer on the Discernment of Intelligent Design. Q. Matt, could you highlight the last paragraph of the article? Could you read that into the record? A. This is the last paragraph. Quote, The world is a mirror representing the divine life. The mechanical philosophy was ever blind to this fact. Intelligent design, on the other hand, readily embraces the sacramental nature of physical reality. Indeed, intelligent design is just the Logos theology of John's Gospel restated in the idiom of information theory, end quote. Q. So like Mr. Johnson, William Dembski locates intelligent design in the Bible in the Book of John? A. He specifically locates it. He defines it as beginning with the Book of John. Q. And can you tell us how the Book of John begins? A. In the beginning was the word. And the word was with God. And the word was God. MR. ROTHSCHILD: I have no further questions, Your Honor. THE COURT: All right. This would probably be an appropriate time for us to take our afternoon break, so why don't we do that. And we'll reassemble at 3:00 to commence cross examination of this witness. We'll be in recess for 20 minutes. (Whereupon, a recess was taken at 2:40 p.m. and proceedings reconvened at 3:07 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 6 (October 5), PM Session, Part 2 THE COURT: All right. Mr. Thompson, you may proceed with cross examination. MR. THOMPSON: Thank you, Your Honor. CROSS EXAMINATION BY MR. THOMPSON: Q. Professor Forrest, we've met before, is that right? A. Yes. Q. I took your deposition back in June of this year. Do you remember that? A. Yes. Q. Okay. I don't know exactly how long it was, but you spent a considerable amount of time today testifying about the Wedge document, have you not? A. Yes. Q. Okay. Are you -- do you know that each of the current Dover Area School Board members who voted for the curriculum change, which is a subject matter of this lawsuit, placed before this Court a declaration, an affidavit that they had neither seen nor heard of the Wedge document before the lawsuit was filed? A. Yes, I know about that. Q. Okay. And do you have one shred of evidence that any member of the Dover School Board had seen or heard of the Wedge document before this lawsuit was filed? A. No. Q. Okay. And you will agree, therefore, that there is no evidence that you are aware of that any member of the school board saw the Wedge document or read anything about the so-called Wedge Strategy? A. I have no evidence of that. Q. Now I want to go back into your relationship with some of the parties in this lawsuit. As you are aware, the American Civil Liberties Union is involved in proceeding with this lawsuit, are you aware of that? MR. ROTHSCHILD: Objection, Your Honor. The ACLU is not a party to this lawsuit, they are counsel in this lawsuit. MR. THOMPSON: I'll rephrase my question, Your Honor, if I may. THE COURT: You should rephrase. BY MR. THOMPSON: Q. You're aware the ACLU, the American Civil Liberties Union, is counsel to the Plaintiffs, or at least some of the Plaintiffs in this lawsuit, are you aware of that? A. Yes, sir. Q. And you have been a member of the ACLU for many, many years, is that correct? A. That's correct. Q. When did you become a card carrying member of the ACLU? A. When? Q. Yes. A. 1979, I believe. Q. Okay. And you've been a dues paying member since that? A. I have. Q. Okay. And why did you join the ACLU? A. I joined the ACLU because I think it does very valuable work, and I support the cause of civil liberties. Q. And in any particular area? A. Especially as it concerns education and the separation of church and state. Q. Do you support the mission of the ACLU in areas other than separation of church and state and civil liberties? A. Generally speaking. Insofar as they defend the constitution, yes, I support that. Q. Are you aware that they hold, the ACLU holds that all legal prohibitions on the distribution of obscene material, including child pornography, are unconstitutional? MR. ROTHSCHILD: Objection, Your Honor. This has absolutely no relevance to Dr. Forrest's testimony. This is not the issue in this case. MR. THOMPSON: It's as much as relevant as a lot of stuff that you put on in this case that had no connection at all with my clients. THE COURT: First of all, Mr. Thompson, if you're going to argue the objection, you argue it to me, not Mr. Rothschild. MR. THOMPSON: I'm sorry, Your Honor. THE COURT: He not making a ruling. Second of all, I don't think it's relevant, and I'm going to sustain the objection. A cognizable reason for the question is not a tit for a tat. It's whether or not it's admissible. It's not on the grounds of relevancy. Now we're going to get a feel. The Court is familiar with the ACLU. She's testified that she's a member of the ACLU for a period of time. I think questions that relate to her bias or motivation on the First Amendment issue, of which you asked her, I think, are fair game, and you can elaborate on that, but we're hot going to go into -- we could be here for days if we get into other activities of the ACLU and whether she's familiar or not as to bias. So I'm going to sustain the objection. BY MR. THOMPSON: Q. You've also been a member of the board of directors of the Louisiana ACLU, have you not? A. Yes. Q. And for what years? A. I believe it was 1995 to 1997. It was a two-year term. Q. And what were your responsibilities as a member of the board of directors? A. To attend the board meetings and to help with fund raising. Q. And what did you do as a member of the board? A. We considered cases that were referred to us by the legal committee and decided on whether to pursue those cases or not. Q. And what kind of cases were they? A. When I was on the Board, it seems like they were mostly cases involving the rights of prisoners. There was one, I remember, it was a free speech rights of a gentleman on a radio station or something like that. Q. Did you ever, during your involvement as a member of the ACLU, ask for help? A. I'm sorry. While I was on the Board? Q. As a member? A. As a member of the ACLU? Q. Yes. A. Yes, I did. Q. And what were the circumstances for your request for assistance from the ACLU? A. I notified the ACLU of an occasion when, in about 1994, in the parish, Livingston Parish, where I reside, where my children were in school, a group of creationists attempted to have a creationist curriculum guide adopted in my children's school system to be used in the science classes. Q. And what year was that again? A. I believe that was 1994. Q. And what kind of assistance did you request? A. I just alerted them to this. I called them and indicated that this was happening. And at the time I didn't -- I don't think I requested anything specific. I just wanted them to know about this in case I did need help. Q. Did you oppose the creation insertion into the curriculum at that time? A. I did. Q. So you've been involved in issues relating to creationism since at least 1994, is that correct? A. Yes. Q. Before then at all? A. Only one time. I made a brief presentation in 1981 at my university on a panel discussion. That was the year the Louisiana Balance Treatment Act was passed. Q. Okay. Are you familiar with the history of the ACLU and the so-called Scopes trial? A. Yes, I'm familiar with that, that the ACLU was involved, yes. Q. Have you read any reports on that at all? A. ACLU reports? Q. No, any reports on the ACLU involved in the Scopes trial regardless of whether the ACLU -- A. Oh, there's been a good deal published about that. I've seen references to that quite frequently. Q. Have you read any books on it? A. Nothing on the Scopes trial per se, not specifically on that. Q. Now since I took your deposition back in June 2005, is there anything else you've done in preparation for your testimony today? A. Since my deposition? Q. Yes. A. I wrote the supplementary report. Q. Anything else? A. Studied a good deal. Q. Studied what? A. The materials that I would have to use or I might have to refer to. Q. Okay. Did you read any trial transcripts of the case as it's been going on? A. I haven't read the transcripts of the trial since it started, no. Q. Okay. A. Last week, no. Q. You're also a member of the Americans United for Separation of Church and State, are you not? A. I am. Q. You're also aware that that organization is representing one or more Plaintiffs in this case? A. I am. Q. How long have you been a member of the Americans United for Separation of Church and State? A. That, I can't tell you, sir. I don't remember the year I joined that. It been a number of years, but I don't know the year I joined that. Q. More than 10? A. Probably, probably. Q. More than 15? A. I doubt more than 15. Q. Okay. So between 10 and 15 years? A. That's probably about right. I can't give you a specific number of years on that. Q. And are you also a dues paying member of the Americans United for Separation of Church and State? A. I am. Q. And how long have you been a dues paying member? A. I'm sorry. When you asked me the question previously, I thought you meant a dues paying member. That's what I can't remember. I've been on the National Advisory Council for several years, although, maybe since 2001. Q. You've been on the National Advisory Council since 2001? A. That's about right. Q. What does the National Advisory Council do? A. As far as I've been on it, we haven't done anything. Q. Good. A. It's been inactive since -- there are meetings, but they're all at times when I cannot go. The only thing that I've actually done as a member of the National Advisory Council is, a couple of times, the ACLU wrote letters to state officials in Louisiana and I would cosign the letters. Other than that, it's actually their board that does all the work. Q. Okay. And what is the responsibility of an advisory council member? A. Actually to support the organization's task of protecting the constitutional separation of church and state. And one of the ways we are nominated for positions on the advisory council is when we have helped to promote the constitutional separation of church and states. Q. Are you also a member of People for the American Way? A. Yes. Q. And what is that organization? A. That is another civil liberties organization. Q. And what is their mission? A. It's about the same as the ACLU's mission, to protect the constitutional civil liberties. Q. Are they, what I'd call, a public interest law firm or are they a political action organization? A. They do have a legal section. They do a good deal of research on issues. And they also, of course, are advocates for their positions. Q. Have you been involved in any capacity with that organization such as a board of directors member? A. No, I'm just a dues paying member. Q. Have you been involved in any kind of activity on behalf of that organization? A. No. Q. Are there any other organizations that you belong to? A. Yes, I belong to the New Orleans Secular Humanist Association. Q. Would you tell us what that organization's mission is? A. That is a very small organization which exists to provide opportunities for people who have the humanist point of view to gather together to meet together. They have meetings. Q. They do have some principles that members abide by, is that correct? A. Yes, there is a statement of principles, yes. Q. Would you tell us what those principles are? A. I don't have them memorized, sir. In fact, I'm not even sure how NOSHA has worded theirs. Generally, it's in line with the statement of principles by the Council for Secular Humanism with which they are affiliated. MR. THOMPSON: Your Honor, may I approach the witness? I want to give her a copy. THE COURT: You may. MR. THOMPSON: Let me give you my copy here. MR. ROTHSCHILD: Your Honor, I just need to know what the exhibit number is so I can follow along. THE COURT: Okay. Well, is he getting it? MR. ROTHSCHILD: I'm not sure. Give us a moment, Your Honor. I think we can find it. THE COURT: All right. Take your time. MR. THOMPSON: I apologize for the delay, Your Honor. THE COURT: That's all right. BY MR. THOMPSON: Q. Dr. Forrest, I've handed you some documents. First one is entitled Forrest Deposition No. 3. It's the New Orleans Secular Humanist Association. Do you have that in front of you? A. Yes. Q. You may refresh your memory about the statements of principle, and I will just ask you just some of the principles that are located on that document? A. Sure. Q. First, under the first paragraph under, about us? A. Uh-huh. Q. Would you read that paragraph, please? A. Quote, The New Orleans Secular Humanist Association is dedicated to raising the awareness of people of the Gulf Coast region to the ideals and values of secular humanism. We are an affiliate of the Council for Secular Humanism, a member of the Alliance of Secular Humanist Societies, Associate of the American Humanist Association, an affiliate of American Atheists, and member of the Atheist Alliance International. Q. Thank you. And that under statement of principles, please read the first sentence? A. Quote, We reject efforts to denigrate human intelligence, to seek to explain the world in supernatural terms, and to look outside nature for salvation, end quote. Q. Do you subscribe to that principle that you just read? A. Yes. Q. The document after that, what is that document? A. Exhibit No. 4, Council for Secular Humanism? Q. Yes. A. I have it. Q. Okay. And would you read what's in that document, starting from the top line? A. Starting from the top. Read all of it? Q. Yes. A. This is the mission statement of the Council for Secular Humanism. And it begins this way. Quote, The Council for Secular Humanism cultivates rational inquiry, ethical values, and human development through the advancement of secular humanism. To carry out its mission, the Council for Secular Humanism sponsors publications, programs, and organizes meetings and other group activities. The council's specific objectives are to promote secular humanist principles to the public, media, and policy makers; to provide secular humanist activities and communities to serve the needs of non-religious people and to foster human enrichment; to demonstrate the viability of the secular humanism eupraxophy as an alternative naturalistic life-stance; to engage in research relating to the critical examination of religious and supernatural claims and the humanist outlook; to conduct educational programs for all age levels, end quote. Q. Now what is your definition of movement as you have used it when you talked about the intelligent design movement? A. It's an organized program that carries out the goal of the program. That's the way I understand it here. Q. Now would you agree that the material that you just read would qualify the Council for Secular Humanism as a movement? A. There is such a thing as the humanist movement, yes. I've seen reference to that, sure. Q. And based upon what you read, they are doing some of the same things as you claim the intelligent design movement is doing but for their own ideological goals, is that right? A. No, sir, I don't think they're doing the same thing here. They are not promoting a religious view as science. They're not doing that. Q. They are promoting common objectives? A. They exist to offer an alternative to people who are like-minded and they promote that alternative. Q. And they are educating the public? A. They have publications which the public are free to read, yes. Q. Yes. There is also a document that is entitled, What is Secular Humanism? Do you have that in front of you? A. Is it a separate exhibit? Q. It's Forrest Exhibit No. 5. MR. THOMPSON: May I approach the witness, Your Honor? THE COURT: You may. THE WITNESS: No, I don't have 5. Thank you. BY MR. THOMPSON: Q. I just handed you a document that is entitled, What is Secular Humanism? A. Yes. Q. Would you read that document, please? A. All of it? Q. Let's start the first page? A. Okay. It's entitled, What is Secular Humanism? Quote, Secular humanism is a term which has come into use in the last 30 years to describe a world view with the following elements and principles: The first one is a conviction that dogmas, ideologies and traditions, whether religious, political or social, must be weighed and tested by each individual and not simply accepted on faith. Commitment to the use of critical reason, factual evidence, and scientific methods of inquiry rather than faith and mysticism, in seeking solutions to human problems and answers to important human questions. A primary concern with fulfillment, growth, and creativity for both the individual and humankind in general. The constant search for objective truth with the understanding that new knowledge and experience constantly alter our imperfect perception of it. A concern for this life and a commitment to making it meaningful through better understanding of ourselves, our history, our intellectual and artistic achievements, and the outlooks of those who differ from us. A search for viable individual social, and political principles of ethical conduct, judging them on their ability to enhance human well-being and individual responsibility. Shall I continue to the second page? Q. The second page, please? A. A conviction that with reason, an open marketplace of ideas, good will, and tolerance, progress can be made in building a better world for ourselves and our children. Q. Thank you. You have described yourself as a secular humanist? A. My thinking is in line with secular humanism. I typically don't label myself really as much of anything, but my thinking is in line with this, yes, sir. Q. And you don't believe in the supernatural, do you? A. I do not. Q. Okay. And you don't believe in the immortality of the soul? THE COURT: Hang on. Wendy, are you all right? MR. ROTHSCHILD: Objection. THE COURT: Are you objecting to the question or the beep? MR. ROTHSCHILD: I would never take on a court reporter. THE COURT: In the case of the latter, there's nothing I can do. MR. ROTHSCHILD: I think we have to be really careful with where we're going with this because I think we're reaching the point where Mr. Thompson is trying to impeach Dr. Forrest and her credibility based on religious views, and that is specifically proscribed by Rule 610 of the Federal Rules of Evidence. I think that's where we're -- you know, I understand Mr. Thompson has a point to make equating Dr. Forrest's views which what she's testified about intelligent design, but as we're talking -- the kind of questions he just asked are going beyond that, and I think simply asking her religious belief in order to address her credibility. I can't see what else they go to. THE COURT: Mr. Thompson. MR. THOMPSON: They do go to the fact that this is a religious doctrine that she is espousing and why she is testifying today. THE COURT: Well, I'll note that Rule 610 does say, Rule 610 does not -- or the commentary, I should say, to Rule 610 says that it does not preclude the admission of evidence of religious beliefs when the evident is relevant in a manner other than to show that the witness's trustworthness is enhanced or diminished by virtue of the belief. And the rule does not prevent evidence tending to demonstrate bias or interest in the part of the witness. So we've got an expert witness, and colorably it goes to bias. I'm not sure if it's a blanket prohibition in the case of this witness that you read it to be. MR. ROTHSCHILD: And, Your Honor, I just want to be careful here because I do understand that this is a case about religion and it may be relevant in some areas, including to this exert. But I think the questions that Mr. Thompson just asked, does she believe in the immortality of the soul, I can't imagine how that connects to any issue relating to her testimony. I think it just is questioning her about her religious beliefs, and I think we need to be careful that we're not violating this rule here. MR. THOMPSON: Your Honor, I understand that is sensitive. I only have a few more questions in this area. And it goes really to the idea that she has attacked the Defendants' position based upon the fact they're Christians. THE COURT: Well, it goes to bias is what you're saying. MR. THOMPSON: Yes. THE COURT: Was there a question on the floor that you objected to? MR. ROTHSCHILD: I object to that characterization because that's not the nature of her testimony at all. THE COURT: I understand that. And you can argue that. That's something that I'll have to decide. But was there -- you'll have to tell me, was there a question on the floor? Were you objecting to the line of questions? MR. ROTHSCHILD: There was a question, and I won't repeat it exactly, and maybe it should be read back, but it asked her whether she believes in the immortality of the soul. And I -- THE COURT: Let's go back, Wendy, and look at the question that was on the floor and take the objection as specific to that question. (Whereupon, the court reporter read back a question.) THE COURT: That's the question now. Do you have an objection? MR. ROTHSCHILD: I don't have an objection to that. I think it was the next question. Maybe I cut it off so it wasn't transcribed. THE COURT: All right. Let's get a question on the floor then. BY MR. THOMPSON: Q. You -- do you believe that nature is all there is? A. That is my own personal understanding of the cosmos, yes, sir. I cannot prove that that's all there is, but that is my considered view. Q. And, therefore, any definition of what science is that excludes the supernatural is consistent with your view that nature is all there is, is that correct? A. You're referring to the methodology of science? Q. Yes. A. The methodology of science is consistent with a great many views, not only with my view. Q. So your answer is, yes? A. It is consistent with my view as well as many others. Q. Now I want to go to your book, Creationism's Trojan Horse. Do you have a copy of that? A. I do. I have a copy here. Q. Now how would you describe this book in general terms? A. This book documents the manner in which the Center for Science and Culture is executing the Wedge Strategy. It looks at how the phases of that strategy are being executed, the activities that are part of that execution. My co-author has analyzed the purportedly scientific claims made by intelligent design proponents. We have also documented the fact that they are a religious movement, but that they are creationists. And we explain the significance of this information to the readers. Q. You started the book with some comments that, to me anyway, reflect your attitude about the creationist movement. And I want to read from page 8. You can follow me. A. I'm sorry. Eight? Q. Eight. A. Um-hum. Q. Subtitled The Wedge's Hammers? A. Um-hum. Q. And you have, Under cover of advanced degrees, including a few in science obtained in some of the major universities, the Wedge's workers have been carving out a -- out a habitable and expanding niche within higher education, cultivating cells of followers. Is that a political statement? A. No, that's a descriptive statement. Cells meaning small groups. Q. Is that what you meant to convey, that this is just small groups? A. Yes, they are cultivating followers on university campuses. They are certainly not a large majority. They are small groups. Keep in mind, I have a co-author, and sometimes these are his words as well. Q. They're pretty -- you would agree that that is pretty polemic, isn't it? A. Depending on how you read it. It's not intended to be inflammatory. It's intended to be descriptive. Q. Well, later on in the same paragraph, you have, armed with a potentially huge base of popular support that includes most of the religious right, wielding a new legal strategy with which it hopes to win in the litigation certain to follow, insertion of ID into public schools science anywhere, and lawyers ready to go to work when it does. The wedge of ID creationism is indeed intelligently designed. Is that sentence there to alert people to the dangers of intelligent design? A. Yes, it is there to alert people to what we think they are doing. Q. Before you even started this book, you already had come to the conclusion that intelligent design was a danger, had you not? A. I believe that intelligent design is harmful to the process of educating children, and I believe that it's harmful to the separation of church and state if it is inserted into a public school as science. Q. And it was, in your view, a dangerous thing? A. To the constitution and to the education of children. Q. And you started with that idea before you did your research for the book? A. I had some understanding of what the Center for the Renewal of Science and Culture was about, and at that point when the -- the understanding I had at the time, yes, it was not something I agreed with. Q. And then on page 11 of that book, down about two-thirds of the way, you state, quote, We also believe that its ultimate goal -- A. I'm sorry. I have to find that. Q. Okay. I'm sorry. It's page 11? A. I'm on 11. Q. Okay, down about two-thirds of the way. A. In the middle paragraph? Q. In the middle paragraph. A. Okay. Oh, it's not the beginning of the sentence, I'm sorry. I've got it. Q. Okay. We also believe that its ultimate goal is to create a theocratic state. Do you believe that? A. Yes, I do. I think the Wedge document indicates that that is the goal. It's stated in the Wedge Strategy. Q. And so your belief is that this Wedge strategy, which you have outlined in detail during your direct examination, is there to create a theocratic state? A. I think if the goals of the Wedge Strategy were fulfilled, that is what we would have. The Wedge Strategy makes very strong statements that what they hope to do is to overturn the culture that has been degraded by scientific materialism and moral relativism. They hope to reestablish it or renew it on a foundation based on their own religious beliefs. Q. Well, in your deposition, you also indicated that you felt that that statement meant they were taking over all three branches of government? A. No, I did not say they were taking over all three branches of government. I indicated that one understanding of theocracy is when people in government are put into positions of political authority, and those positions are determined or their position there is determined by their religious beliefs. Q. That becomes a theocratic state? A. If the government is controlled by people who are in position in order to act on their own religious beliefs, yes, that would be a theocratic state, to fashion policies around those religious preferences. Q. And, as you know, there are three branches of government, correct? A. There are. Q. And one individual or one branch of government does not have absolute power as to what's going to happen in this country, isn't that correct? A. It's not supposed to. Q. Well, you have the legislative branch of government that may make a law, which the judicial branch of government says is unconstitutional, is that correct? A. Under the constitution, we have a system of checks and balances. The constitution sets that up. Q. And before a theocratic state could be implemented, it would mean that all three branches of government would have to cooperate with the Wedge Strategy, is that correct? A. In its totality, yes. There are areas, of course, on a smaller scale in which people in positions of authority could be acting on their own political preferences. So I would say that you would have degrees of that. It's not a matter of all or nothing. Q. But the reason you wrote this book was your concern for the implementation of a theocratic state by the Wedge Strategy? A. I'm concerned about the statement by the Wedge Strategy, the people who are promoting it, that what they hope to do is completely overturn what they consider a materialistic culture. Those are their statements. Q. That could be political action, could it not? A. I think they have in mind political action, among other things. That's what the statement says. It uses the word political. Q. That could be education, correct? A. Education insofar as it is an area of public policy. Q. That could be attempts to persuade a majority of the people that their view on morality is the appropriate view, correct? A. Not just an attempt to persuade. It depends on how they would go about implementing that. Q. What do you mean by that? A. Insofar as they might attempt to have a particular view implemented as public policy, I think there might be some particular problem, if you're talking about an about a religious view. Simple attempts to persuade are not a problem. Q. Are you familiar with the Santorum Amendment? A. I am. Q. And what does that amendment state? A. That is a two-paragraph statement that was written by Phillip Johnson. It was inserted by Senator Rick Santorum into the No Child Left Behind Act the day before the Senate voted on it. It was eventually removed and placed into the legislative history of the bill after some very slight rewording. Q. And it was contained in the final conference report? A. It's in the joint explanatory statement of the committee of conference, which accompanies the conference report? Q. And just paraphrase what the Santorum Amendment is? A. The Santorum Amendment, in paraphrase, says that, generally students should be taught the difference between the testable ideas of science and philosophical or religious ideas that are presented in the name of science, and that whenever controversial subjects such as evolution are taught, children should be instructed as to why those issues are controversial. It specifically mentions biological evolution. Q. Doesn't it basically say that, whenever biological evolution is taught, students should be made aware of the controversy? A. That students should be made aware of why that is a controversial issue. Q. Is there a difference between what you and I just said? A. It depends on how you're using the controversy. If you're talking about, if they should be made aware of a controversy within science about the status of evolution, that would not be correct. So depends on how you intend controversy to be understood. Maybe you need to explain it to me. Q. Well, I'm just trying to find out what Senator Santorum meant by this. MR. ROTHSCHILD: Objection, Your Honor. THE COURT: Well, that's not a question. So there's nothing to object to. That's a statement by Mr. Thompson. So let's have a question. BY MR. THOMPSON: Q. You, in fact, in your book, stated that Senator Santorum's Amendment was the first step in establishing a theocracy, did you not? A. I don't believe I said it was the first step in establishing a theocracy. Q. What did you say? A. Would you like to point to something I said? Could you show me in the book, please? Q. I can. You don't remember making any statement about -- A. Could you please just show me what I said? Q. Would you turn to page -- we'll start with page 240, entitled, subtitled The Santorum Amendment? A. 240? Q. Um-hum. A. Um-hum. Q. And I'll have you read a few sentences in that section, starting with the first sentence under there. Under the subtitle The Santorum Amendment? A. Yes. Quote, The May 2000 briefing was clearly the beginning of the Wedge's plan to influence science and science education policy at the national level. The events of June 2001 confirmed this assessment. On June 13th, 2001, Pennsylvania Senator Rick Santorum introduced Amendment No. 7992S1, The Better Education for Students and Teachers Act, along with its House companion, HR1, The No Child Left Behind Act of 2001. This piece of legislation was a major revision of the elementary and secondary education act overhauling federal education programs. Santorum added his amendment to the bill only one day before the Senate was to hold a final vote after six weeks of debate. Recognized on the floor at the U.S. Senate by Senator Edward Kennedy, Santorum rose to explain his amendment. Quote, I rise to talk about my amendment, which is a sense of the Senate that deals with the subject of intellectual freedom with respect to the teaching of science in the classroom in primary and secondary education. It is the sense of the Senate that does not try to dictate curriculum to anybody. Quite the contrary. It says, there should be freedom to discuss and air good scientific debate within the classroom. In fact, students will do better and will learn more if there is this intellectual freedom to discuss. It is simply two sentences. Frankly, two rather innocuous sentences that, hopefully, this Senate will embrace. This is a quote of the sentences. Quote, It is the sense of the Senate that, one, good science education should prepare students to distinguish the data or testable theories of science from philosophical or religious claims that are made in the name of science; and, two, where biological evolution is taught, the curriculum should help students to understand why this subject generates so much continuing controversy, and should prepare the students to be informed participants in public discussions regarding the subject. Shall I continue? Q. That's fine. You objected to the Santorum Amendment, did you not? A. Yes, I did. Q. And you, in fact, wrote a letter to members of the House of Representatives and to the Senate opposing the Santorum Amendment? A. Yes. Q. Okay. In what capacity did you write that letter? A. At the time, I was the head of a small group called Citizens for the Advancement of Science Education. I believe that's when I wrote the letter. Q. And who started that organization? A. It was a group of people, including myself, that were, that had met in Kansas, people from around the country, to discuss the issue of the problem of intelligent design in science education. Q. And what was the gist of your letter, if you recall? A. Do you have a copy? Q. I do have a copy. A. Because it's been several years since I wrote it. Q. I thought I did. I'll have to find it. I'll withdraw that question for the time being. Now your objections to the biology curriculum change, I believe, is that it infiltrates religion into the science classroom? A. I'm sorry. Are you referring to a change generally or in this specific biology curriculum? Q. The biology curriculum of the Dover Area School Board that included the one-minute statement? A. And you're asking if I object to -- Q. Because it injected religion into the classroom? A. Insofar as it presents intelligent design as an alternative theory, it is presenting a religious belief as an alternative scientific theory. That is my objection. Q. And if it were shown to you that intelligent design does not require a supernatural creator, would you change your mind? A. Intelligent design, as it is espoused by the proponents of intelligent design, the movement, does involve a supernatural creator. Intelligent design, in a non-controversial sense, I'm not sure what you mean. Are you talking about -- Q. If a scientist such as Michael Behe testifies that intelligent design does not require a supernatural creator, will you then withdraw your objections to intelligent design being mentioned in that one-minute statement? A. I would want to have some positive sense what he meant by that. I would want to know more than just, does it require a supernatural creator. I would want to know the sense in which he was using it. Q. That's what I want to find out. What is your objections to intelligent design? You are not a scientist. But what are your objections to intelligent design if it does not include the concept of a supernatural creator? A. Intelligent design, as it is understood by the proponents that we are discussing today, does involve a supernatural creator, and that is my objection. And I am objecting to it as they have defined it, as Professor Johnson has defined intelligent design, and as Dr. Dembski has defined intelligent design. And both of those are basically religious. They involve the supernatural. Q. Well, a lot of the evolutionists also have philosophical or religious statements attached to their theory, is that correct? A. Outside the -- their capacity as scientists, of course, they do. Q. And you would object to that as well, would you not? A. I would object to what specifically, sir? Q. If they attach a philosophical or religious component to the theory of evolution? A. It's not within my purview to object to anybody attaching a philosophical view to their understanding of evolution. But I don't believe that your -- I'm not sure, are you referring just to their personal decision to attach a philosophical view to their understanding of evolution? Anyone has the right to do that. I don't object to that. Q. And if intelligent design advocates or theorists happen to attach a religious component or, excuse me, a religious explanation for their theory, would you object to that? A. That isn't what they're doing. They're not attaching a religious component. Intelligent design is, in essence, a religious belief. It is not a scientific belief with a religious component attached to it. Q. Well, that's one of the issues that we are going to have the experts testify to. But you will admit, will you not, that many prominent evolutionists have philosophical claims based on their understanding of the theory of evolution? A. As is their right to do. Q. And so that you have the late Gaylord Simpson who said, man is the result of a purposeless and materialistic process that did not have him in mind. He was not planned. End quote. Are you aware of that claim that he made? A. Yes, I've read his book. Q. Did you agree with the claim? A. Evolution, as a natural process, is not something that you can interpret as having a particular purpose or goal. That idea simply is not a scientific one. Now you might incorporate the idea of evolution into a larger philosophical understanding. And it is my estimation that that's what Gaylord Simpson was doing. Q. Well, you quote, you have a section in your book on the first -- let me start. Do you know who Steven Wineberg is? A. Yes. Q. Who is he? A. He's a Nobel Prize winning scientist. Q. And as I recall, you had a quote from him in your book, is that correct? A. Yes. It's on page 3. Q. Okay. And so what was the reason for putting that quote in your book? A. My co-author chose that. Q. Okay. Now are you aware of this comment by Professor Wineberg? Quote, I personally feel that the teaching of modern science is corrosive of religious belief, and I'm all for that. One of the things that, in fact, has driven me in my life is the feeling that this is one of the great social functions of science--to free people from superstition, end quote. Are you aware of that statement that Professor Wineberg -- A. Yes, I'm aware of that. Q. Do you agree with Dr. Wineberg's claim? A. Not necessarily. Q. Do you disagree with his claim? A. If he is saying that -- I'm sorry. If you're asking -- are you asking me if I were aware of it? Yes. If you want to know whether I agree or disagree with it, I would ask you to please read it to me again. Q. Sure. Quote, I personally feel that the teaching of modern science is corrosive of religious belief, and I'm all for that. One of the things that, in fact, has driven me in my life is the feeling that this is one of the great social functions of science--to free people from superstition, end quote. A. No, I don't share that belief. Q. Now would you have taken away his status as a Nobel laureate because he got involved with religious and philosophical comments about -- regarding science? A. No. Q. Okay. I know you're aware of Eugenia Scott. A. I'm on her board of directors. I forgot to mention that organization, by the way. I'm on the board of directors for the National Center for Science Education. Q. And Ms. Scott is noted as a notable scientist of the Manifesto 3, do you know that? A. No. I didn't know that. Q. The manifesto makes broad philosophical claims such as, humans are the result of unguided evolutionary change, and that humanists recognize nature as self-existing. Do you agree with those claims? A. I do. Q. Are they scientific claims? A. No, that's a philosophical statement. It goes beyond what science can establish. Q. Okay. And basically, she is in charge, head of the National Center for Science Education, is that correct? A. She's the director. Q. But she is making philosophical and, I believe, religious claims in the area of science, would you agree with that? A. She signed that statement as a personal act on her part. That is not what she does as the director of the National Center for Science Education. She does not promote her personal preferences as head of that organization. She promotes the principles of good science education. Q. But she is a very outspoken person with regard to teaching of Darwinism, is she not? A. She's a very forceful defender of teaching science as it should be taught. Q. And she does everything she can as the director to prevent intelligent design from being included in the science education? A. She does. Q. Based on the comments that Eugenia Scott has made and Dr. Wineberg, would you conclude that evolution is not a scientific theory? A. Based on what specific comments, sir? Q. The comments that I just read? A. The comments that -- Q. By Steven Wineberg, the first comment I read? A. Those are Steven Wineberg's comments not Eugenia Scott's. Q. No, I said, and Eugenia Scott's comments. Do you believe that Darwinism should not be a part of the educational curriculum? MR. ROTHSCHILD: Objection. I'm not sure there are any Eugenia Scott comments that have been presented to the witness. MR. THOMPSON: Quote, humans are the result of unguided evolutionary change and that, quote, humanists recognize nature as self-existing, end quote. THE COURT: You withdraw the objection? MR. ROTHSCHILD: I don't think those are comments Eugenia Scott made. MR. THOMPSON: Well, I just put quotes around the phrases. MR. ROTHSCHILD: I'm not sure that changes that they're not things -- she didn't make comments to that effect. I mean, I think the issue, just for clarity, is that those are words from, I think, the humans manifesto, which apparently she had signed onto. The witness doesn't even know that is so. THE COURT: So you're saying they're mischaracterized as direct quotes? MR. ROTHSCHILD: It's very unclear. I think the witness was confused about what comments are being referred to, and I'm not -- MR. THOMPSON: I understand. I think I understand. THE COURT: Well, here's what I perceive, and that is that, the objection likely caused the question to be issued in two parts. So why don't you restate the question? MR. THOMPSON: Thank you, Your Honor. THE COURT: That will be clear to the witness, I'm sure. BY MR. THOMPSON: Q. I earlier read to you the comments by Nobel laureate Steven Wineberg. Do you remember that? A. Yes. Q. Based on the comments that he made regarding the philosophical and quasi-religious, I guess, nature of evolution and modern science, do you believe that that would exclude Darwinism as a scientific theory? MR. ROTHSCHILD: I'm just going to object to the characterization, Your Honor. THE COURT: All right. Overruled. You can answer the question. THE WITNESS: If I understand you correctly, you are linking the comments that he made with the status of Darwinism as an evolutionary theory. BY MR. THOMPSON: Q. Correct. A. I don't think the comments that he made, his personal statements about science have that much to do with the status of evolutionary theory. And, I'm sorry, I don't see the connection that you're trying to make. Q. Okay. I think you answered my question. And then regarding Eugenia Scott, you know she's the director of the National Center for Science Education, and she is a notable signer of the humanist Manifesto 3. To accurately characterize that, the humanist manifesto makes proceed philosophical statements such as, quote, Humans are the result of unguided evolutionary change. And then further again, the manifesto -- A. Um-hum. Q. -- claims that humanists recognize nature as self-existing, end quote. Do you agree with the claims that the humanist manifesto makes? A. I understand those claims, and I generally agree with them. Q. Okay. And Eugenia Scott is an outspoken advocate of teaching Darwin's theory? A. She is an outspoken advocate of teaching evolutionary theory in public science class, yes. Q. Based upon the methodology you used in excluding statements -- excuse me. Withdraw that. Based upon the methodology you use to conclude that statements made by Dembski or Steven Myers or Jonathan Wells should exclude intelligent design from public education, why would that same methodology not be used to exclude Darwinism from public education? A. If you will permit me, sir, let me please make a distinction in what I think these people are doing. And I don't think you're representing Eugenia Scott's position accurately. Eugenia Scott's signed the humanist manifesto as a personal act on her part. She is quite cognizant, and she has expressed this many times, of the difference between what she can assert as a scientist and what she can assert as a citizen with philosophical preferences. She has many times expressed that distinction. She is quite aware of it. In fact, she does not use her position as director of the National Center for Science Education to promote her particular personal viewpoints. She is adamantly against doing that. In fact, she was the most important person in persuading the National Association of Biology Teachers to take language of that sort out of their statement. She is quite aware that there are many personal viewpoints people can take, and she has stated many times that one must recognize a distinction between what one can say as a scientist and what one says as a private citizen expressing a philosophical preference. She does not do the same thing that, I believe, Dr. Dembski and his intelligent design associates are doing. Q. I guess then, what methodology do you use to exclude the same kind of consideration from Dr. Dembski and others that you used to exclude Eugenia Scott's philosophical and religious comments? MR. ROTHSCHILD: Objection, Your Honor. THE COURT: No, I'll allow the question. The objection is overruled. THE WITNESS: In Dr. Dembski's case, it is not a matter of his having a scientific viewpoint which can be defended and a philosophical viewpoint attached to that. His viewpoint regarding intelligent design is at its core, in its essence, a religious viewpoint, not a scientific one. What I object to is his presenting that as a scientific theory that should be offered to students in a science class. I don't think there is any analogy at all between what he is doing and what Eugenia Scott does. And part of my job as a philosopher is to make those distinctionss clear. BY MR. THOMPSON: Q. Well, I think you've already indicated that you are not a scientist, correct? A. I'm not a scientist, but I am an educated person who understands the way science works. That's not hard to understand. Q. And you are not -- you are not an expert in science to the extent that you can evaluate Michael Behe's concept of irreducible complexity, are you? A. I have never claimed to be a scientific expert evaluating Dr. Behe's statements about irreducible complexity. That is not within my expertise. Q. Okay. And so you continue to say that intelligent design is not science without you personally being able to evaluate the scientific claims of Dr. Michael Behe, is that correct? A. My understanding of intelligent design as science is a position that I can defend without having to address the particular scientific claims. Those have been very well addressed by Professor Miller. What I know about intelligent design is that it is defined by its own leaders in religious terms. And any idea that is defined by its own leaders in religious terms as requiring a supernatural creator is not a scientific idea. That's simply basic elementary science. Q. That's what I'm getting at. You excuse Eugenia Scott and Steve Wineberg when they talked about their scientific theories and religious and philosophical terms, but you will not give the same benefit to those in the intelligent design movement, is that true? MR. ROTHSCHILD: Objection. Mischaracterizes the statements that Mr. Thompson has just been quoting. THE COURT: Well, he has her on cross. And I think it's a fair question on cross. I'll overrule the objection. You may answer. THE WITNESS: Would you repeat it, please, the one that you just asked? (Whereupon, the court reporter read back the question.) THE WITNESS: They're not doing the same thing, sir. Eugenia Scott is not advocating that her personal philosophical preferences be taught to school children in a public school science class as science. She insists that the evolutionary biology that has withstood scientific testing now for 150 years be taught. Dr. Dembski and his associates in the intelligent design movement are asking that their view, which is, at its essence, a religious view, be offered to children as science. So that is not what Eugenia Scott is doing. BY MR. THOMPSON: Q. Well, I don't want to keep on going around as to whether intelligent design is a religious view or a scientific theory. But you will agree, will you not, that any analysis must clearly make distinctions between religious motivations of the ID proponents and the religious implications of intelligent design theory? A. What I am talking about is the essence of intelligent design, and the essence of it is theistic realism as defined by Professor Johnson. Now that stands on its own quite apart from what their motives are. I'm also talking about the definition of intelligent design by Dr. Dembski as the Logos theology of John's Gospel. That stands on its own. Q. Well, didn't the president of Americans United for Separation of Church and State also use the Logos theology by saying, God could have said, evolve? A. You're talking about the director, Barry Lynn? Q. Yes. A. Barry Lynn said this in a jovial way. He was certainly -- he certainly recognizes the difference between science and religion. I know Barry. And he was making a jovial comment. Q. Were you there when he made that statement? A. I was -- I was not present when he made the statement. Q. Do you agree with Dr. Ken Miller's testimony that not everything a scientist says is science? A. Scientists say many, many things. They talk about lots of things in addition to science. Q. And that could also be true of the intelligent design theorists, is that correct? A. I would ask that you give me something specific to evaluate, but I'm sure they talk about lots of different things, too. Q. They may talk about their personal religion, correct? A. Yes, they do quite a bit. Q. Their philosophy of life, correct? A. Yes. Q. And they understand that when they're talking about that, they're not talking about science? MR. ROTHSCHILD: Objection, Your Honor. It calls for speculation. THE COURT: The objection is sustained to that question. She couldn't know that. So it's sustained. BY MR. THOMPSON: Q. Well, you're aware that Dr. Dembski earned a Ph.D in philosophy from the University of Illinois? A. Yes. Q. Are you aware that he has a Master's of Divinity from Princeton Theology Seminary? A. Yes. Q. He's got a Ph.D. in mathematics from the University of Chicago, correct? A. Yes. Q. So at one point, he may be talking about theology, is that correct? A. He could be talking about theology on an occasion, certainly. Q. And at another time, he could be talking about mathematics, correct? A. Sure. Q. He could be expounding on his theory of probabilities and the inference design, correct? A. Sure. Q. And you would not take statements that he made from his theology background and say, because he's made those statements, that that now impunes or destroys everything he is saying from his mathematical background? A. It would depend on what he is specifically saying, sir. He says many things in which he expresses theological views, and those are part of the definition of intelligent design as he has given it. He doesn't seem to make the distinction. Q. Does he always have to make a distinction? A. If he had some real science to present, yes, he should. Q. So when he is talking to the magazine Touchstone, which is a Christian, a religious magazine, he has to say to the reporters, now I'm going to be talking about my religious beliefs? MR. ROTHSCHILD: Objection, Your Honor. I'm not sure what Mr. Thompson is referring to. MR. THOMPSON: Your Honor, there were several exhibits that had Touchstone magazine articles in them, and they were referring to religious statements. And my point is that because Mr. -- Dr. Dembski is a theologian as well as a scientist, he may be talking in religious terms because of the context and the venue of the commentary. MR. ROTHSCHILD: I'm just asking for some clarity. There's articles. There's interviews. At least to the testimony, we focused on articles of Mr. Dembski. I just wanted some clarity on what exactly we're talking about. THE COURT: Well, I think the question went to the various writings of Mr. Dembski that you put up, and I'll -- go ahead. MR. ROTHSCHILD: I mean, he talked about responding to reporters. I just think we need some clarity. I'm not saying he hasn't talked to reporters. But the specific statements by Dr. Dembski that Dr. Forrest discussed were, in fact, articles. I just think, for Dr. Forrest's benefit, there should be some clarity. Are we talking about articles? Are we talking about interviews? MR. THOMPSON: I can clarify it, Your Honor. She's the one that saw the articles and commented on them. THE COURT: Well, do you want to hone your question or can you hone your question to the responses that Mr. Dembski gave to reporters or would it relate to his scholarly writings? MR. THOMPSON: Thank you, Your Honor. THE COURT: I think that's the issue. MR. THOMPSON: I'll hone it to this. BY MR. THOMPSON: Q. You referred to several articles during your direct examination that were written by Professor Dembski in Touchstone magazine, is that correct? A. Yes. Q. And that's a religious publication, is it not? A. It is. Q. You expect that Dr. Dembski would have to say that, I'm now going to be talking about philosophy or religion, when he's published that article in a religious magazine versus, you know, his scientific views? A. First of all, Dr. Dembski is not a scientist. He has no formal credentials in science. You mischaracterized him a minute ago as a scientist, which he is not. When he explains intelligent design in terms -- when he defines it in a religious sense, that indicates to me that he's not speaking scientifically at all. If intelligent design were a scientific theory, he would never have to use religion to explain it. But he does that quite often. In fact, in his book, Intelligent Design, The Bridge Between Science and Theology, he explains intelligent design to the lay audience, to the non-scientific audience. And in that book, that book is pervasive overtly religious and he explains it as an overtly religious idea. Q. Let's correct the characterization of Dr. Dembski as a scientist. You don't believe he's a scientist. He's a mathematician though, isn't he? A. He's not a scientist. He's a mathematician, a philosopher, and a Christian apologest. Q. He wears several hats then? A. He has quite a few degrees. Q. Right. And so he could be discussing intelligent design wearing his theologian's hat, correct? A. Yes. Q. Or he could be discussing intelligent design wearing his mathematician's hat, correct? A. If he's discussing intelligent design wearing his mathematician's, then he's discussing a religious idea wearing his mathematician's hat because intelligent design, as he has defined it, is a religious idea. It's not a mathematical idea. It's not a biological idea. Q. Again, that's a question that we will address as to whether it is science or not. But right now, what I'm trying to discover is the methodology you use for excusing Darwinists who use philosophical terms and make philosophical statements based upon their science and the methodology you use for not excusing intelligent design theorists when they make philosophical statements and religious comments? A. My methodology is to simply make a very careful distinction between people who are not doing the same thing. And that is part of what we call critical analysis, to clarify ideas and to make careful distinctions. That's the methodology I'm using. Q. Is there a formula that we can look at? A. It's part of critical thinking. It's part of recognizing the difference between science and religion. It's part of recognizing the difference between a true statement and a false statement. Q. You mentioned critical thinking. And I believe you say you've taught a course on critical thinking? A. I teach it regularly. Q. Yes. What is a logical fallacy? A. A logical fallacy is a mistake in one's reasoning. Q. And there are several different concepts under logical fallacy, like lists of logical fallacies, is that correct? A. There's scores of logical fallacies. Q. What is a logical fallacy of ad hominem? A. The ad hominem fallacy is when you dismiss a person's argument and instead attack a person's character. Q. What is the logical fallacies of straw man? A. Straw man fallacy is when you intentionally misrepresent or weaken a person's argument in an effort to make it easy to refute. Q. And what is the fallacy of, the genetic fallacy? A. It is a fallacy of dismissing another person's position based on where it came from, the origin of it. Q. So when you attack someone as a creationist or -- excuse me, when you say someone is a creationist, it could very well be a straw man's argument, is that correct? A. Not as I'm doing it, no, sir. Only if I misrepresented a person's position. And I'm not attacking, I am describing. I am simply stating the facts of the case. Q. Is Dr. Ken Miller a creationist? A. Dr. Ken Miller is an evolutionary biologist who is also a Catholic. Q. Would you consider him a creationist? A. Not in the sense, no, I would not. Q. Well, Dr. Miller testified in this case that, quote, God is the author of all things seen and unseen, and that would certainly include the laws of physics and chemistry, end quote. Is that a creationist talking? A. In his own personal viewpoints, I understand Dr. Miller to be a theistic evolutionist. And that is a position that intelligent design proponents vehemently object to. They do not recognize it as a valid position. Q. When you say, intelligent design advocates object to it, are you talking about all intelligent design advocates object to that? A. Specifically, Dr. William Dembski has stated that, design theorists are no friends of theistic evolution. And that is a sentiment shared by at least the major figures in the intelligent design movement that are the subjects of my research. Q. Michael Behe, is he one of them? A. Michael Behe, as I understand him, is a creationist. Q. And he would attack Ken Miller's viewpoint that God is the author of all things, seen and unseen? A. I'm not sure what Professor Behe would say about Professor Miller's viewpoints. I'm sorry. I don't have a specific comment by which to judge. Q. Would Darwinists consider Professor Miller a creationist? A. Could you explain to me what you mean by a Darwinist? Q. Those people who advocate the theory of evolution or Darwin's theory of evolution? A. The people who accept the science of evolutionary biology? Q. Yes. A. And you're asking me if those people would consider Ken Miller a creationist? Q. Yes. A. Again, I would have to see a specific comment. I wouldn't want to make a blanket statement. Q. Well, you've -- A. Dr. Miller, as I understand him, is not a creationist. He certainly believes in God. He has been very open and up front about that. But his view about the science is that he accepts evolutionary biology, and he finds no inconsistency between his understandings as a scientist and his viewpoints as a Roman Catholic. Q. Well, using your methodology then and accepting what Dr. Miller has said about God, the creator of all things seen and unseen, should you disregard anything that Ken Miller says as unscientific? A. It would depend, sir, on a specific statement. I can't make that assessment based on simply a hypothetical, very general question of the kind that you're giving me. Q. What other information do you need? A. Could you give me a specific statement? Q. Well, Dr. Miller testified, quote, God is the author of all things seen and unseen, and that would certainly include the laws of physics and chemistry. MR. ROTHSCHILD: Objection. MR. THOMPSON: And he's also testified, quote, God is the author of nature and, therefore, I believe that things that happen in nature are consistent with God's overall plan, and evolution is a natural process. MR. ROTHSCHILD: Objection, Your Honor. MR. THOMPSON: End quote. MR. ROTHSCHILD: Mr. Thompson refers to a particular testimony. I suspect there's quite a great deal of context. MR. THOMPSON: Page 64 of this transcript. MR. ROTHSCHILD: Which transcript? Of the deposition or the -- MR. THOMPSON: Of his testimony. MR. ROTHSCHILD: Could we make that available to the witness and allow counsel to look at it? MR. THOMPSON: Well, Your Honor, I've asked the question, and it's based on those facts. THE COURT: Well, at the very least, you should let Mr. Rothschild see if you took it out of context whether we let the witness see it or not. So go to the page, Mr. Rothschild, take a look at it, and see if the question was taken out of context. MR. ROTHSCHILD: Do you have a page of the transcript we can look at, Mr. Thompson? MR. THOMPSON: I think it's page 65, I believe it was. MR. ROTHSCHILD: And, Your Honor I apologize. We don't have our transcripts here. MR. THOMPSON: Page 64. THE COURT: Well, look at his. MR. THOMPSON: I just got a question here with the page on it. MR. ROTHSCHILD: Your Honor, this is -- do you have the transcript? MR. THOMPSON: I don't have it here, Your Honor. THE COURT: Let me ask you this. Do you have a lot more for this witness? MR. THOMPSON: Pardon me, Your Honor? THE COURT: Do you have a lot more for this witness? MR. THOMPSON: Yes. THE COURT: That's what I thought. We're probably reaching a point where you could wrap it up for today, if you want to save that, withdraw the question for now, get the transcript, then you can do it. We have a couple minutes now. You can pursue something else. But if it is an appropriate break point -- MR. THOMPSON: Your Honor, I think it is a good time to quit. THE COURT: I would point out, you had referred to some documents, and Mr. Muise did as well, during his voir dire questioning, but they were not assigned exhibit numbers. Now I don't know if it's your intention to put them in, but you might want to give some attention to that and think about that after we conclude the witness's testimony tomorrow, and we'll take the exhibits at that time. All right. This is an appropriate time then for us to end the trial day. We will stand in recess, unless counsel, you have anything further for today? MR. ROTHSCHILD: No, Your Honor. THE COURT: We'll stand in recess until 9:00 a.m. tomorrow. We'll reconvene at that time. (Whereupon, the proceeding adjourned for the day at 4:30 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 7 (October 6), AM Session, Part 1 THE COURT: Good morning to all. We resume with Professor Forrest's testimony, and we remain in Mr. Thompson's cross-examination. MR. THOMPSON: Thank you, Your Honor. CROSS-EXAMINATION (cont'd.) BY MR. THOMPSON: Q. Good morning, Professor Forrest. A. Good morning. Q. I'm going to ask you to refer to your expert witness report. Do you have a copy of that with you? A. I do. Q. On the first page of that report, under one, conclusions about the intelligent design creationist movement, you state, My area of expertise is the nature and strategy of the intelligent design creationist movement. When did you first hear about the phrase "intelligent design creationist movement"? A. In exactly those terms? Q. Or let's focus it a little more, limit it to "intelligent design creationist." When did you first hear that phrase? A. That came up in 1994 when I was involved in efforts to prevent the introduction into the science classes of Livingston Parish when I was involved in that effort that we talked about yesterday. Q. And isn't it true that the proponents of intelligent design do not use that phrase, "intelligent design creationist"? A. They don't like to be called creationists. Q. I'm talking about the phrase. Is it true that they themselves do not use the phrase "intelligent design creationist"? A. That's correct, they don't use that phrase. Q. And it's true, also, that that phrase is used by people who are critical of the intelligent design theory. Isn't that correct? A. That phrase is used by critics of the movement. Q. So, really, it's a pejorative term? A. No, sir, it's a descriptive term. Q. But it's used by people who are critical of the movement? A. People who are critical of the movement because they understand it as a creationist movement. They see it for what it is. Q. And so it is a description that those who are opposed to intelligent design use? A. Yes. Q. Now, during your testimony yesterday, you identified Professor Michael Behe as one of the leaders of the intelligent design movement. Is that an accurate description of your testimony? A. Yes. Q. Do you want to add any descriptives to that? A. I can't think of any that I need to add. He is one of the very early members of the group. Q. Yet you barely mention Professor Behe in your expert report. Isn't that correct? A. That's correct. Q. I think you've mentioned him in one line. Isn't that correct? A. In my report? Q. Yes. A. I'm sorry, I don't have a count of the lines in which I mentioned him. Q. Okay. I want you to go to Page 48 of your expert report. And under the paragraph, No intentions to follow standard procedure for scientific peer review, that subheading, do you see that there? A. Yes, yes. Q. In about the middle of the paragraph starts the sentence, Kenneth Miller, an evolutionary biologist at Brown University, who has published scientific criticism of Behe's concept of irreducible complexity, has commented on Behe's refusal to avail himself of this opportunity. And that is an opportunity to, I guess, discuss his concept in front of various conferences, scientists. Is that correct? A. Yes. Dr. Behe is a member of the American Society for Biochemistry and Molecular Biology. If you look at the Web site for that organization, it states that its members have the right to make presentations on any subject of their choice at their meetings. Dr. Behe has never availed himself of that opportunity, despite the fact that he is a member of that organization. Q. And what is interesting in your report is the fact that you acknowledge that Kenneth Miller has published scientific criticisms of Behe's irreducible complexity concept. A. Yes. Q. So there is a controversy going on between scientists regarding the concept of irreducible complexity. Is that correct? A. No, sir, not of the kind that the Discovery Institute is telling people that there is. The controversy that the intelligent design proponents are trying to convince people exists is a controversy over the status of evolutionary theory within the mainstream scientific community. That controversy is nonexistent, and that is what Dr. Miller is responding to. Q. Well, he's publishing scientific criticisms. Is that correct? A. He is a scientist who is responding to the nonscientific claims of Dr. Behe. He has the position as a scientist which gives him the prerogative to do that. Q. And so he is going around and talking about and criticizing Behe's concept of irreducible complexity. Would that be a fair statement? A. He is a very prominent critic of that, yes. Q. Okay. And he is doing that at science meetings? A. I'm not aware of what he has said at science meetings about this. Dr. Miller has been a very active voice in many different venues for the integrity of science. Q. And then you go on in this paragraph, and it's a quote, quotation marks, it's a purported quote from Dr. Behe. Quote, If I thought I had an idea that would completely revolutionize cell biology in the same way that Dr. Behe -- excuse me, this is a quote -- that's not the quote I'm looking for. A. This is Dr. Miller. Q. Yeah, that's Miller. This is what Dr. Miller says. Quote, If I thought I had an idea that would completely revolutionize all cell biology in the same way that Professor Behe thinks he has an idea that would revolutionize biochemistry, I would be talking about the idea at every single meeting of my peers I could possibly get to. Is that an accurate quote from Ken Miller? A. That is accurate. Q. And then there's the purported quote from Behe that you've put in there. Behe, however, declines. Quote, I don't just think that large -- I just don't think that large scientific meetings are effective forums for presenting these ideas, period, end quote. Is that a quote that you got from Dr. Behe? A. That is not a purported quote, sir. That is a quote in the Chronicle of Higher Education in the article by Beth McMurtrie. Both of the quotes by Dr. Miller and Dr. Behe come from that publication. Q. It's a quote that you saw in a publication? A. Yes. Q. Okay. Behe is not an Evangelical Protestant, is he? A. Dr. Behe is a Roman Catholic. Q. So he's not a fundamentalist, as well? A. He's not a fundamentalist Protestant. Q. Okay. Have you ever personally interviewed Dr. Behe? A. No. Q. You are aware, I think we've discussed before, that he authored the book Darwin's Black Box? A. Yes. Q. Have you read that book? A. I have read parts of that book. Q. Did you read parts of it where he describes the bacterial flagellum? A. Yes. Q. Does he describe it in religious terms? A. No. Q. Have you read the book where he discusses the blood clotting cascade? A. A separate book? He only has -- Q. No, the same book where he's discussed -- in the same book where he's -- A. I've seen his discussion of the blood clotting cascade and the bacterial flagellum in a number of places. The specific parts of Darwin's Black Box in which he speaks in religious terms, specifically the last chapter. Q. But he describes the bacterial flagellum in scientific terms. Is that correct? A. Scientific terms as he understands them. Q. Observing the data. Is that correct? A. Yes. Q. Okay. And he talks about the blood clotting cascade, as well, in scientific terms? A. Yes. Q. He doesn't use religious terms to describe these biological systems, does he? A. No, not in those descriptions. When he is referring to "design," though, that is a religious term. Q. That wasn't my question. A. When he introduces that into his discussion, then that would be a religious term. Q. But that wasn't my question, was it? A. In specific places in the book, yes, he does speak about it in a scientific fashion. Q. My question was, when he discusses the blood clotting cascade, does he discuss that in scientific terms? And your answer was yes, as I understand it. A. I said when he introduces the concept of design, then he's introducing it as a religious term. But, no, when he's discussing the blood clotting cascade, per se, yes, he's looking at it as a scientific idea, yes. Q. And when he is discussing the blood clotting cascade, per se, he is not discussing it or describing it in religious terms, is he? A. That's correct. Q. Okay. Your expert report does not even cite that book, does it? A. Dr. Behe was not one of the primary subjects of my expert witness report. Q. Well, the question is, your expert report does not even cite that book, does it? A. No. It was not one of the primary objects that I looked at. Q. Yet you considered him one of the leaders in the intelligent design movement. Is that correct? A. I do. Q. And your expert report does not even quote from the book, does it? A. No. Q. Okay. After you follow this quote of Dr. Behe, I just don't think that large scientific meetings are effective forums for presenting these ideas, end quote, you start the next sentence with, Yet, and you conclude that sentence with, he has made numerous presentations in churches, period. A. Yes. Q. That particular comment has nothing to do, does it, with the scientific validity of the concept of irreducible complexity? A. The scientific validity of irreducible complexity is something that has to be addressed by somebody other than myself. I am not a scientist. Professor Miller has already addressed that. There was really no need for me to take that up in my expert witness report. It wasn't what I was asked to do. What I was asked to do is to document my research findings that this is a religious movement. Dr. Behe, in his capacity as a participant in this movement, reflects the entire program. He does not make scientific presentations about an idea that he purports -- that he says is scientific. He does speak frequently about irreducible complexity and other aspects of his work in churches and other religious outlets. That is the part of this issue that I was asked to cover. That is why I'm not talking about irreducible complexity in my report. That's not the area of my expertise. Q. But yet you focus on the fact that he has made numerous presentations in churches? A. Dr. Behe is the one that has made those presentations, and I am making people aware of that in my work. Q. And this is a part of your scholarly study? A. Yes. It's a part of the research that I did because it reflects the nature of the intelligent design movement. Q. Are you aware that Dr. Behe has given many presentations in scientific settings regarding the concept of irreducible complexity? A. Could you explain what those scientific settings are for me, please? Q. The settings? A. Yes. What are the settings that you're referring to? Q. Okay. The Department of Biology, King's College in Wilkes-Barre, Pennsylvania; the Department of Biology, University of South Florida; the Department of Chemistry, Villanova University; the symposium at Wheaton College; Department of Mathematics at the University of Texas; the Schilling Lecture on Science and Religion, Department of History and Religious Studies, Pennsylvania State University; Department of Ecology and Evolutionary Biology, Princeton University; Department of Chemistry, Colgate University; Department of Genetics, University of Georgia; Department of Biochemistry, University of Minnesota; the Guy F. Lipscomb Lecture, Department of Chemistry and Biochemistry, University of South Carolina; panel discussions with Lynn Margulis and other scholars, University of Massachusetts, Amherst; Department of Biochemistry at Mayo Clinic; the Brooklyn section of the American Chemical Society; the Gordon Research Conference on Organic Reactions and Processes in New Hampshire; Evolution, Darwinian Medicine Conference, Royal Society of Medicine in London; Baylor University, plenary lecture to the Nature of Nature; University of Aberdeen; Concordia College; Messiah College; Department of Philosophy at Wilkes University; American Association for the Advancement of Science Meeting in Haverford College; University of New Mexico to the -- it was a special presentation to the Deans of Medical School; the Biotechnical Group at Sandia National Laboratories, Albuquerque, New Mexico; Los Angeles National Laboratories in Los Alamos -- that was Los Alamos National Laboratories; American Museum of Natural History; Cornell University, introductory evolutionary biology class. That was actually the biology class of Professor William Provine, an ardent evolutionist. Chestnut Hill College, Philadelphia, Pennsylvania, undergraduate biochemical lecture; Department of Biochemistry and Biophysics, University of California; and the list goes on. You never mention any -- MR. ROTHSCHILD: Your Honor, objection. I just want to be clear, and I'm not suggesting -- I don't have personal knowledge, but is Mr. Thompson representing that all of these are presentations on intelligent design? Because Professor Behe is a biochemist, has done work in the field of biochemistry separate from intelligent design, and I just want to make sure what's being represented here. I don't have personal knowledge, but I just want to make sure the record is clear on this point. MR. THOMPSON: My question was, was she aware of presentations that Dr. Behe had made to various scientific organizations, because she never listed any of those. MR. ROTHSCHILD: And my objection stands. THE COURT: Well, you don't know whether they were about intelligent design or about another subject? MR. THOMPSON: I don't know that every one of them were, Your Honor. THE COURT: All right. That clarifies the question. You can answer the question. THE WITNESS: I'm not -- I don't have knowledge of every single presentation that he's made, but I know that some of the presentations that you talked about were arranged by people who are sympathetic to his point of view as an intelligent design proponent. For example, when he spoke of the Nature of Nature conference at Baylor, that was a conference that was organized by creationists. It was organized by members of the Discovery Institute. The Foundation for Thought and Ethics had a hand in that. That was not a bona fide scientific meeting. And so these are not, you know -- these are not presentations in which he would be presenting intelligent design at a scientific meeting subject to peer review. He has stated himself that he chooses not to do that. Dr. Miller has pointed that out himself. So many of his presentations are really -- they're not strictly scientific meetings. Many of the talks he gives on university campuses -- and I'm speaking about Dr. Behe -- are arranged by people who are sympathetic to his point of view, and some of them are arranged by campus youth ministries. That's a very frequent sponsor of some of the talks that he gives. So I'm familiar with some of those, and I do not agree that he's making strictly scientific presentations. And from the publications that I found for Dr. Behe in the scientific databases, not a single one of those publications that's in a peer-reviewed scientific journal presents intelligent design as a biological theory. He simply does not do that kind of work. And when he was asked at the Baylor conference about the research in intelligent design, he expressed the hope that he hoped somebody would eventually do it. He himself does not do it. BY MR. THOMPSON: Q. The Nature of Nature conference, there were Darwinists who gave lectures at that conference, were there not? A. Yes. Q. So they weren't all intelligent design advocates, were they? A. They were chiefly that, chiefly intelligent design advocates. There were people representing the evolutionary point of view. That conference was designed that way by the people who organized it. Q. And, in fact, you were attempting to keep Darwin evolutionists out of that conference, were you not? A. No, sir, that is false. And I can explain that to you, if you wish. Q. I will get into that in a few minutes. What's interesting, however, is that in your report, you throw out the comment that "yet he has made numerous presentations in churches." The question I have for you is, what is the academic criteria or methodology you use to make the claim that Dr. Behe gives presentations at churches but yet leave out those academic presentations I just mentioned? A. Sir, I am describing his activities. He does not make scientific presentations using intelligent design as a biological theory at bona fide scientific peer-review conferences. He does not do that. You will not find that reflected in his professional work. In his professional work as a biochemist, he himself does not use "intelligent design." He doesn't use the term. I am reflecting his activities as he has carried them out. I simply did not throw out this term. This is an accurate statement of what Dr. Behe chooses to do. Q. And so I'm still trying to understand the academic methodology or the criteria that you're using to make a statement that he speaks at churches but keep out the statements that he has spoken at all these other conferences that I mentioned. Even though some of them may not be, you know, dealing with intelligent design, you just leave totally out of your report that he does make statements. A. Dr. Behe is discussed extensively in my book. It is not as though he is totally ignored in my work. The aspect of this issue that I was asked to discuss are his activities as an intelligent design proponent. I am reporting those accurately. He makes numerous presentations. He does not and has not and has expressed an intention not to put himself through the process of peer review as reflected in the statement that is in the Chronicle of Higher Education. I am simply accurately -- my methodology is to tell the truth about what he does. Q. Well, I think you misrepresented his quote. He just said, quote, I just don't think that large scientific meetings are effective forums for presenting these ideas, not that he is not subjecting himself to peer review. MR. ROTHSCHILD: Objection, Your Honor. He's arguing with the witness now. MR. THOMPSON: I'm asking a question. I don't think it was in an argument form. THE COURT: Well, that was a declarative statement. That wasn't a question. If you want to phrase it as a question, you can do that. The objection is sustained. BY MR. THOMPSON: Q. Isn't it true that all he stated was he just doesn't think large scientific meetings are effective forums for presenting his ideas? Isn't that all he said? A. Sir, this is part of the peer-review process. Scientists attend meetings -- there are certain standards of scholarship. It doesn't matter what your discipline is, you understand these standards of scholarship. And one of the standards of scholarship in science is that you submit your ideas to peer review in a scientific debate. Dr. Behe is the person who has chosen not to do that, and I am reflecting that. Q. Would it be an accurate statement that there have been many comments about his book, Darwin's Black Box, by scientists? A. Yes, there have been many comments about his book by scientists. Q. And so scientists can read the book, and they have printed commentary, criticisms of his concept of irreducible complexity. Is that true? A. Yes. They are responding to what they consider an inaccurate portrayal, not only of the science, but they're also objecting to his espousing the idea of intelligent design. The fact that scientists have responded to his work does not make his work in itself scientific. Q. You just indicated that's a part of the scientific process, is it not? A. The process of scientific peer review, which Dr. Behe, as an advocate of what he purports to be a scientific theory, is to present those ideas before his scientific peers at meetings to have them reviewed, to have them critiqued, and then to have those ideas survive that process so that they can be presented as scientific ideas in a scientific journal. Dr. Behe has not done that. Q. You're not saying, I don't think, that all of these meetings that I mentioned, that there were not scientists there that were critiquing him, were you? A. I'm sure there were scientists at lots of these meetings. That does not make these meetings part of the scientific review process. Q. I guess the question I have to you at this point with regard to what you put in your report, don't you think that the way you set that down was a gross misrepresentation of what Dr. Behe is all about? A. No, sir. It's an accurate representation. Q. In other words, the validity of a particular scientific concept is based upon the fact that this proponent goes to church? A. Scientists do not usually defend their ideas in churches, sir. Dr. Behe does that frequently. If he had a valid scientific idea to present, he would find a valid scientific outlet for it. He would submit it to peer review by his fellow scientists. He himself has chosen not to do that. Q. Well, do you believe that it would be a fallacious argument for me to make the statement Dr. Behe's concept of irreducible complexity is invalid because he goes to church and makes comments about that concept? A. I have not said that it's invalid because he does it in churches. Dr. Behe, by his activities, is reflecting the fact that he has no valid science to present. Q. Well, again, you are not a scientist, are you? A. No, I'm not. Q. Okay. A. My coauthor is. Q. And so when you make those kinds of statements, you are going outside of your bounds of expertise. Is that correct? A. People who are well acquainted with this issue and who make an effort to inform themselves about the current state of the science, which I have made a great deal of effort to do, understand that if Dr. Behe had scientific data to present, he could do that. It's not hard to understand that he hasn't done it. Q. So my question is, you don't hold yourself out as an expert in science, do you? A. No, sir, I've never claimed to do that. And I do not speak to his scientific -- his purported scientific defenses of irreducible complexity. Dr. Miller has done that very well. Q. And there is a dispute between Dr. Miller and Dr. Behe about whether Dr. Behe's concept of irreducible complexity could be explained by natural selection. Isn't that correct? A. Some of the country's major scientists, a number of major scientists have critiqued Dr. Behe's claims. Dr. Miller is not an isolated voice. Dr. Behe's work has been looked at by many of the most prominent scientists in the country. They are unanimous in their rejection of what he has to say. And irreducible complexity itself is a very old creationist idea. It is not new. Q. And so basically what you said is a lot of scientists have looked at Dr. Behe's work and have critiqued it. Correct? A. They have offered very thoughtful, detailed criticisms of it to show why he is wrong. Q. Based on scientific principles. Correct? A. Yes. Q. Okay. A. From their standpoint. Q. You are not meaning to suggest that science is based upon majority vote, are you? A. It's based on a consensus. It's not simply a vote. Q. Well, would it be accurate to say that many scientific theories that were considered invalid by the community of science have ultimately become the consensus of the community of science? A. Could you give me an example, please? Q. The big bang theory. MR. ROTHSCHILD: Objection, Your Honor. We're spending a lot of time asking this witness questions about science after Mr. Thompson has taken pains to point out that she's not an expert in that field, rather than the testimony she's actually given. MR. THOMPSON: Your Honor, the only reason I ask these questions is because she keeps on making scientific commentary, and I want to probe as to exactly where her limits of scientific experience end. THE COURT: Well, she said she's not a scientist. I'm going to overrule the objection. I'll allow you some latitude in this area, but I'm not so sure that this is particularly helpful to me. I will tell you that. Be guided by that. MR. THOMPSON: I will be guided by that, Your Honor. THE COURT: I'll give you some latitude. You can proceed. BY MR. THOMPSON: Q. Just to close up that line of inquiry, the big bang theory was espoused by a French priest, Belgian French priest. Isn't that correct? A. Yes. Q. And at the time that he propounded that theory, most of the scientific community thought he was wrong. Correct? A. That happens. Q. Okay. And, in fact, Einstein, our great scientist, called him a buffoon. Isn't that correct? A. I'm not familiar with that specific comment, but if you say so. Q. And ultimately it became the consensus of the scientific community? A. Because it survived a very rigorous testing process and it was submitted to review by scientific peers. That has not happened with intelligent design. Q. Well, science is an ongoing process, is it not? It starts someplace, and then you have the critiques that go on? A. Yes. But I would remind you that the intelligent design strategy has now been in execution for almost 14 years, and they have presented absolutely nothing in the way of science to support their claims. And they have themselves admitted, I might also recall from yesterday, just as recently as August of last year, Dr. Nelson pointed out, in an interview which he shared with major leaders of this movement, that they have no theory of biological design. They have nothing. Q. We will address that. We did have some discussion yesterday about Dr. Bill Dembski. Correct? A. Yes, we did. Q. And he is another leader, so-called leader of the intelligent design movement? A. One of its early founders or early members of the Wedge strategy. Q. And I recall you did acknowledge that he had written a book, The Design Inference? A. Yes, I believe that was his first book. Q. And that Design Inference book is an academic monograph? A. It was his dissertation. Q. On intelligent design? A. I don't believe so. I have two conflicting statements from Dr. Dembski on that. When Dr. Dembski presented testimony in September, 2003, before the Texas Board of Education, when the Discovery Institute involved itself in the effort to choose science textbooks, Dr. Dembski presented to the board a list of works which he said supported intelligent design. He included his book The Design Inference in that list. But two months before making that list, he had posted the comment on a Web site that he has that that book did not address the implications of biological design. It did not -- he himself wrote that about his own book, The Design Inference. Q. Well, his book was a book on mathematical probabilities? A. That's part of his work as a mathematician. Q. Right. He's not a biologist, is he? A. He has no formal credentials in science. Q. But you will agree with me then that The Design Inference is an academic monograph on intelligent design based upon Dr. Dembski's mathematical formulations? A. It depends on what you mean by a monograph on intelligent design. He himself is giving -- has given conflicting statements about that. Q. Well, this monograph was published by Cambridge University Press. Are you aware of that? A. Yes, sir. Q. And it was published as a part of their monograph series entitled, Cambridge Studies in Probability, Induction and Decision. Are you aware of that? A. That's correct. Q. A question I have for you is, why was not his book, The Design Inference, mentioned in your expert report? A. That book lies outside my area of expertise. I don't have the technical background to evaluate that book. The most important book that I looked at is the book in which he explains intelligent design to his lay audience. And in that book, he explains it in overtly religious terms. He himself stated, as I just pointed out, that when he wrote The Design Inference, it did not address the implications of design for biology. Q. So that if a scientist describes their work in overtly religious terms, that means the work is invalid? A. Dr. Dembski has defined intelligent design as a religious idea. I believe that came out yesterday. If it's a scientific idea, you certainly don't define it as the logos theology of John's Gospel. Q. Would you agree that many scientific theories have religious implications? A. Just about anything you could talk about has religious implications. Q. So that if a scientist wants to talk about the religious implications of his or her theory, they are certainly welcome to do that. Right? A. Yes, they are welcome to do that. But when you're talking about intelligent design, you're not talking about something that has religious implications, you are talking about something which is, in essence, religious itself. Intelligent design is essentially a religious idea. So it's not merely that we're talking about a scientific idea with religious implications. That is not the case. Q. Well, again, there is some dispute as to whether intelligent design is a religious concept or not. But you will agree that Dr. Behe is doing biological studies on irreducible complexity as a part of the intelligent design theory. Correct? A. No, sir, he's not doing scientific research to support that idea. Q. You don't consider what Dr. Behe has done with reference to the bacterial flagellum as scientific research? A. Dr. Behe wrote a book for the popular audience. That's what Darwin's Black Box is. It's a book for the popular audience. Now, the fact that he talks about science in that book does not make it a discussion of a genuine scientific idea. When he gets to the last chapter of that book, he is actually arguing for supernatural explanations in science. That is not a genuine scientific idea. Q. There are Darwinists that do the same thing, isn't that true, that argue a philosophical or a religious idea based upon their scientific theories and understandings? A. Could you tell me who specifically you're speaking about? Q. Well, yes. Richard Dawkins, who states the evidence of evolution reveals a universe without design. Darwin made it possible to be an intellectually fulfilled atheist. Are those religious statements by a Darwinist? A. Those are his personal points of view, which he is certainly fully entitled to express. Q. As is Dr. Behe? A. Yes. Q. As is Dr. Dembski? A. Yes. They are entitled to express their personal points of view. What they are not entitled to do is have those religious ideas presented in a science class to children as a scientific theory. Q. Well, that's not the question I asked you. But it is Richard Dawkins who uses a theory of evolution to propound what I would say is religious and philosophical ideas. Is that correct? A. He does. And some people have different ideas about that, and they express them differently. He's one voice, and he takes his own point of view. Q. Do you know who Peter Singer is? A. Yes. He's a philosopher. Q. And he is a professor at a university? A. Yes. Q. Have you ever heard this comment from him, Evolution teaches us that we are animals so that sex across the species barrier ceases to be an offense to our status and dignity as human beings? Have you ever heard him say that? A. I haven't heard that specific comment. Q. Okay. What about Randy Thornhill, do you know who he is? A. No. Q. Or Craig Palmer? A. Craig Palmer? Q. Yes. A. I'm sorry. Q. Okay. These individuals indicate rape is a natural biological phenomenon that is a product of human evolutionary heritage akin to the leopard's spots and giraffe's elongated neck? Have you ever heard that? A. No, sir. That's not connected to my work. Q. How about the statement from Steve Weinberg, and we know -- you discussed Steve Weinberg. You know who he is. Right? A. Yes. Q. And he said, quote, I personally feel that the teaching of modern science is corrosive of religious belief and that I'm all for that. One of the great things that, in fact, has driven me in my life is a feeling that this is one of the great social functions of science to free people from superstition. Have you heard that? MR. ROTHSCHILD: Objection, Your Honor. Asked and answered. We're just repeating the same cross-examination from yesterday. MR. THOMPSON: Your Honor, I'm trying to help her. She asked for various Darwinist evolutionary concepts which have led to other philosophical and religious -- THE COURT: I'm not sure it was asked in exactly that form. I'll overrule the objection. You can answer the question. THE WITNESS: I'm sorry, would you repeat the last thing? What is your question, sir? BY MR. THOMPSON: Q. This was by Steve Weinberg, the quote by Steve Weinberg. A. Right. Q. I personally feel that the teaching of modern science is corrosive of religious belief, and I'm all for that. One of the great things that, in fact, has driven me in my life is the feeling that this is one of the great social functions of science to free people from superstition. Have you heard that comment? A. You read it yesterday. Q. Yes. And that is going beyond the actual theory of evolution to a philosophical or religious point of view? A. Yes, sir, it's a very uncontroversial fact that scientists don't always speak purely as scientists. Those comments are not what won Professor Weinberg his Nobel Prize. What won him his Nobel Prize was his work in science. Over and above that, he's free to take any point of view that he chooses. Q. Yesterday I mentioned your claim that Senator Santorum's amendment was a first step to a theocratic state, and you asked where that statement was made. Does that refresh your recollection? A. You indicated that you have -- MR. ROTHSCHILD: Objection. That mischaracterizes the testimony. THE COURT: In what way? MR. ROTHSCHILD: He referred to statements in her book by Mr. Santorum, and she asked to look at her book. THE COURT: Well, it might be a distinction without a difference. She asked to see the statement in the context of the book. Let's move on. MR. THOMPSON: Let me ask it in a different way, if I may, Your Honor. BY MR. THOMPSON: Q. Is it your position that Senator Santorum's amendment, as adopted in the final conference report, is a first step in a theocratic state? A. Sir, you indicated that you had a letter that I had written? Q. Forget about the letter right now. I'm asking you the question. A. Senator Santorum cooperated with the intelligent design proponents. Phillip Johnson crafted that entry, which was first filed as a sense of the senate resolution. Senator Santorum is a very strong supporter of intelligent design. He has chosen to align himself with their effort. Q. And then my question to you again is, is it your opinion that that amendment was a first step toward a theocratic state? A. That amendment is part of the Wedge strategy, and the Wedge strategy itself is an effort to overturn everything that they consider to be detrimental to American society. The Wedge strategy is very clear, and the Santorum amendment is part of that. The Wedge strategy is an effort to, as they say, completely overturn the effects of scientific materialism on American culture. They have spoken many times, intelligent design proponents have spoken many times of their dislike of secular culture, their dislike of secular education, their dislike of secular government. The Santorum amendment was part of that effort. Q. So is it your opinion then that the Santorum amendment was a first step toward a theocratic state? A. It's a part of the continuing effort to overturn the secular basis of American culture. It's part of the Wedge strategy. Q. You still haven't answered my question, Professor Forrest. Is it your opinion that Senator Santorum's amendment was a first step toward a theocratic state? A. I think it is a step which points in that direction, yes, sir. Q. Have you heard a statement by President Bush in the last several weeks that we should be teaching intelligent design alongside evolution? A. Yes. The statement he made in early August? Q. Yes. And do you believe that is also a step toward a theocratic state? A. I can't tell you what was in the President's mind. I only know what he said. I am familiar with what the intelligent design proponents are doing. I'm familiar with their strategy. What the President was thinking when he made that statement is not -- I'm not privy to that. Q. In your book -- and I'm referring to your book now Creationism's Trojan Horse -- you make a statement, and it's on Page, I believe, 271 in your book, you make a statement in your book on Page 271, Dobson -- this is in the middle of the page. A. Yes. Q. Referring to James Dobson, Director of Focus on the Family, Dobson sees America as gravely threatened by secular humanism. A. I'm sorry, let me find the line. Q. Okay. It's about in the middle of the page. A. I've got it. Q. The sentence is, and I quote, Promoting the religious right propaganda that church/state separation is a myth, Dobson sees America as gravely threatened by secular humanism. Is that an opinion that you came by that Dobson seems gravely -- said he's gravely threatened by secular humanism? A. That reflects Dr. Dobson's position as he himself has explained it. Q. That part, gravely threatened by secular humanism, is that an opinion of yours, or has he made that actual statement? A. That reflects his statements, his sentiments as he has expressed them on many occasions. Q. And you believe Dr. Dobson is a theocratic extremist. Is that true? A. I believe Dr. Dobson has very extreme views, yes, I do. Q. And you would characterize him as a theocratic extremist? A. I would. Q. What about D. James Kennedy, do you know who he is? A. Certainly. I've written about him. Q. And he is whom? A. He is the founder of Coral Ridge Ministries in Coral Ridge, Florida. Q. And you also characterized Dr. D. James Kennedy as another religious right operative? A. Yes. Q. Now, what do you mean by the word "operative"? A. He's very active in the religious right effort to undermine secular public education, secular government. He is very active. I would call him an activist. Q. And he is also characterized as a theocratic extremist? A. Yes. Q. Now, in writing your book, Creationism's Trojan Horse, how long did it take you? A. Three and a half years. Q. How long after you did your research did you work on the manuscript? A. I did research almost up until the time it was published. We were adding material almost at the very last -- for as long as we could. Q. And you had a coauthor, as well? A. Yes, I have a coauthor. Q. How was that -- how did that work? How did you and the coauthor decide upon the actual final draft? A. I had a complete draft at one point containing the research I had done on the intelligent design movement. When Professor Gross agreed to become my coauthor, we went back through the entire draft. He did some extensive additions in terms of critiquing the scientific claims of the intelligent design proponents. He and I both went through every word of every chapter. We both were integrally involved in reworking my original manuscript, and he added his scientific critique to it. Q. And how long did that process take where Dr. Gross became involved in actually going through the manuscript? A. I'm trying to think exactly when he came on as the coauthor. We worked for at least two years together. It was quite a long time. Q. And can you give me an idea how many drafts you all developed? A. Too many to count. Q. Okay. A. We revised this book many, many times. It's a product of a great deal of hard work. Q. You are not, in your review of Pandas and People and the various drafts that were put up on the display, you are not suggesting that school boards must review all the drafts leading up to the final product before they approve a reference book to put in their library, are you? A. I'm not suggesting that school boards should have reviewed drafts of manuscripts before they were published. Is that your question? Q. The various drafts of manuscripts. A. No, I didn't suggest that. Q. Okay. And you're not suggesting that school boards should do background investigations on the religious and political leanings and activities of the authors of books before they put those books in the library, are you? A. I didn't suggest that. Q. You have no evidence showing that any member of the Dover School Board or the Dover School Board administration was aware of the various drafts of Pandas and People, do you? A. No. Q. Did you ever have an opportunity to review the transcript of the deposition of Jon Buell? A. Yes. Q. He's the FTE founder. A. Yes, I have the transcript. Q. And are you aware that Mr. Buell, under oath, stated that there was never any contact between FTE, himself, and any members of the Dover Area School District or administrators? A. I don't recall that specific part of the transcript, sir. I'm sure if it's in there, that's what he said. Q. Well, do you have any evidence at all that there was any contact between -- A. No. Q. -- FTE and Jon Buell and any members of the Dover Area School Board or the school board administrators? A. No, I don't have evidence of that. Q. Now, there were several displays put up that had graphs of word counts. Would you just go through how you developed those graphs? A. Those drafts were developed by staff at the National Center for Science Education. You're referring to the word counts in the Pandas books, the various drafts? Q. Yes, right. A. There was a firm that I believe was working with the legal team that provided scans of those drafts in what is called ASCII text. That's just plain, unformatted text. Based on those drafts, the word counts were run. It's very easy to run a word count for a specific word or a cognate of a word. The NCSE staff ran the word count and made the charts, and I re-created some of the word counts just to see how they had done it and to verify it. I got exactly the same results they did. Q. Okay. I've got two graphs that were prepared, and I'm not sure how I can identify them. I guess I can. One has the -- there are two phrases. One is "creation" and "design." A. That was the first graph. Q. And then there's a second graph that has "creation" with an IS at the end and "intelligent design." A. That was the second one, yes. Q. Now, the graph here on the left side of the page, and any graph, has -- on either one of the graphs, I should say, starts from zero at the bottom and goes up to 300. That's referring to the "creation" and "design" graph. What do these numbers mean on the left side of the graph? A. The number of times a word or a cognate would be used. Q. Okay. Taking the graph that describes "creation" and "design" word counts, it starts at 150. Does that mean "creation," which is in red, was used 150 times? A. Is that the first graph you've got where we were looking for "creation" and then "design"? Q. Correct. A. Yes, it would represent finding that word in the text about 150 times. MR. ROTHSCHILD: Your Honor, can I suggest that we put them up on the witness's monitor and on the screen? MR. THOMPSON: Sure. BY MR. THOMPSON: Q. The top, as I understand it, the top display is the one that deals with "creation" and "design." And the word for -- "creation" appeared at the beginning of the graph 150 times? A. That's what -- the graph reflects the actual word counts. Q. And then the blue line dealing with the word "design" is just below the 50 line. Is that correct? A. Yes. Q. And the graph goes up and down towards the last book, Of Pandas and People, which is edited or published in 1993 where -- can you give me the word count for "creation" in that edition? A. I'm sorry, which one are you -- 1993? Q. Yes, the last one. A. Okay. Well, it shows that it's far fewer than 50. If you're looking at the far right side of the graph -- right? Q. Right. A. Pandas, 1993? Q. Yes. A. Yes, it's well below 50. Q. And the word "design," how high is that? A. That is -- I'm sorry, it's right here. The word "design" in the 1993 version is something over 200. Q. Now, how many total words were in Of Pandas and People? A. Oh, sir, I'm sorry, I can't remember the total number of words. Q. So we can't really put this in perspective to the whole book, can we? A. I think you can. I think what this graph -- what this graph is intended to show is the sharp decline in the use of the term "creation" in the second, 1987 draft and the steep rise in the substitution of the term "design" for that word. That's what the graph is designed to show. Q. So that you cannot tell the Court how many actual words there were in Of Pandas and People? A. No. The total word count? No, sir, I don't remember that. Q. So that it could possibly be that even if you go to 200 words of "design" in the last book, it might be miniscule compared to the number of words in that edition. Correct? A. That's not a very long book. That book is probably less than 200 pages. It's quite a short book, actually. Q. But please answer my question. You can't really determine the relative importance of that word unless you had the total word count? A. What's important about this graph is not the total word count of the book, but the use of the word "creation" as opposed to the word "design." That's what the graph is designed to show. What the graph is designed to show is that the word "design" was substituted for the word "creation," as you can see in the sharp decline in the use of the word "creation" and the sharp rise in the use of the word "design." Q. Do you believe that it would have been appropriate academically to list the number of words in each edition? A. Typically, in editions of textbooks, people are not concerned about the total number of words in the book, if I understood your question correctly. Q. Well, maybe let me rephrase it. To get an idea of how important 200 times "design" was used, one should have an idea of how many total words there were in the book. Isn't that accurate? A. In a book that short, which has only about six chapters and they're not that long, I think you're looking at significant word counts with respect to the word "creation" and the word "design." In a book that short, I think these findings are significant. The words were used pervasively throughout the book. Q. Well, "significant" is a subjective opinion. Is that right? A. "Significant" is not at mathematically precise word. Q. Right. And so it would have been more mathematically accurate to at least give us the total word count in each edition of Pandas and People? A. I'm sure we could provide that information if you wish. What is significant about this graph and the work that we did is that it shows very clearly that a word substitution was made, that the term "creation" was changed to the term "design." Not only -- a visual inspection reveals that quite clearly. This simply quantifies what we learned through visual inspection. A deliberate change was made. Q. Would you consider Darwin's Origin of Species a scientific book? A. Yes. Q. You agree that it does have all kinds of references in it to intelligent design -- excuse me, to "design" in the book? A. It refers to "special creation." Q. And it talks about the Creator? A. There is a reference near the end of the book in one edition to that, yes. Q. And would you think that by referring to "design" and the "Creator," that that makes the Origin of Species a religious book? A. No, it doesn't make it a religious book. You have to look at what Darwin was doing. The prevailing explanation up until Darwin was that the data in the geological record, for example, was -- reflected the work of a supernatural creator. That was the prevailing explanation. Now, in order to make his case, Darwin had to mention the prevailing explanation. He simply had to because it was the one that he was arguing -- that he was presenting evidence to show that his explanation works better. It's not a surprise that he would incorporate mentions of special creation in his book because he's arguing that this cannot be a scientific explanation that accounts for what we see. It's not surprising that he would talk about it. Q. What about the breath of the Creator? That's a religious term. A. If you know the background of Darwin's writing of that book, you know that Darwin was very concerned about the effect of that book on the religious sensibilities of people about whom he cared quite deeply. He was very respectful of that. He added that as a gesture of respect to the idea that some people believed that. Darwin himself did not believe that the origin of life was a question that he could answer, and he never addressed it. It was made as a nod to the religious sensibilities of some of his readers. Q. Would you object if Darwin's Origin of Species was placed in a school library? A. I would not. Q. And reference was made to it in a curriculum? A. I would not. Q. Even though it did have that nod to religion in it? A. I would not object. Q. Okay. Darwin also wrote the book Descent of Man, I believe it was. A. Yes. Q. And what was that book about? A. That is a book in which he applies his ideas about natural selection to the human species. He does not do that in the Origin of Species. Q. That book also has some philosophical -- strike that. You teach a course on critical thinking? A. I do. Q. And what do you discuss in that course? What are the major topics? A. I'm sorry, I didn't hear the last part of your question. Q. What are the major topics? What do you discuss in that course? A. That's a course in which students learn the basics of logic, the difference between deductive arguments and inductive arguments. They learn about the different types of propositions that can be used in arguments. They learn about the logical fallacies. They do a good deal of exercises learning those thinking skills. Q. Would it be a logical fallacy to hold that a particular scientific theory is invalid because of the religious motivations of its proponents? A. A scientific theory is not invalid simply because people have religious motivations in their work. Q. Would you believe it's a logical fallacy to hold that a particular scientific theory is invalid because of the religious affiliation of its proponents? A. Certainly not. Q. Now, as I recall, you also use in your -- one of your course of studies, I don't know if it's the critical thinking course, but the Appleman reader, Darwin's Appleman reader? A. Philip Appleman is the editor of the Norton Critical Edition of Darwin, that's correct. Q. And what course did you use that for? A. That's in my graduate seminar in the History of Western Thought. Q. And how do you use that book? A. My graduate students read the excerpts in that book from the Origin of Species, from The Descent of Man, and they read some of the critical essays in the back. Q. And one of the critical essays they read is Darwin's Black Box by Michael Behe? A. There's an excerpt, yes. Q. And that is to give them a critical view of Darwin's theory of evolution? A. Those essays are included to show that creationists have made various objections to the theory of evolution. Mr. Appleman is trying to give a full panoply of the responses to Darwin's theory. Q. Does he actually use the purpose of Darwin's theory -- the purpose of Michael Behe's Black Box is to show what creationists think? A. It's in a section in which various -- there are various responses to that. I believe it's in the same section as Eugenie Scott's response, and it is part of the section that deals with creationist objections. Q. But he doesn't call Dr. Behe a creationist, does he? A. Mr. Appleman? Q. Yes. A. He doesn't call Dr. Behe a creationist in that book. Q. Do you think that that is a valuable book for the education of your students? A. It's valuable in that it shows that there have been nonscientific objections to evolutionary theory. It's valuable in that it shows something of the history of the creationist effort in the United States, the responses to Darwin's theory. Q. Do you have any idea why they would pick Darwin's -- excuse me, Michael Behe's Darwin's Black Box to do that? A. To show the full nature of the creationist response. I think that it's intended to be represented as part of creationists' objections to Darwin's theories. Q. Well, isn't it true that the part that he picks deals with Dr. Behe's concept of irreducible complexity? A. That's true. Q. Now, is it necessary for a scientist to develop a scientific theory by doing lab work? A. That's part of science. There are certain areas of science in which that is appropriate. Q. Is it necessary to a scientific theory that the theory's proponent himself do lab work? A. I should think that if a person purports to have a scientific theory, that person would be closely involved in whatever research is necessary to substantiate that claim. Q. Well, there are various ways of -- I'm not sure what you mean by "closely involved." A. Doing research. Q. Doing the research. So a theory is only valid if the proponent of the theory himself does the research? A. I should think that if a person is a proponent of a theory in the way that Dr. Behe claims to be, he would be in the front line of the research, he would be involved in it himself. Q. I'm not sure if you answered my question. Is it yes or -- A. I'm sorry, that's what I thought you were getting at. Q. Well, just please answer my question. Do you believe that the proponent of a theory has to actually do the lab research for that theory to be valid? A. If a person is a proponent of a scientific theory, that person should be engaged in whatever research is appropriate to the establishment of that theory, whatever it might be. It might not necessarily be working in a laboratory. It might be something else. There's fieldwork, for example, that's involved. Q. What about reading peer-review articles, could that be sufficient for a valid scientific theory? A. No, sir. Reading peer-reviewed articles is not doing research. Reading peer-reviewed articles is reviewing the research. It's not the first line of science, which is to produce the data. If you're doing -- if you are doing scientific research, you are producing data. Q. So that failure to do scientific research on a particular theory that a scientist propounds makes that theory invalid? A. Failure to produce any data at all for what is presented as a scientific theory indicates that you don't have a theory. Q. Well, will you agree that Albert Einstein developed the theory of relativity? A. May I make a distinction here just for the sake of precision? Q. Sure. A. There is a difference -- a theory is well-established science. It is something that's far beyond the stage of initial research. When you propose an idea in science that is in its preliminary stages of research, what you have is a hypothesis. And by the time you call something a theory in science, it is far beyond that stage. It means that it is a very well-confirmed scientific explanation. So when a person purports to have a scientific theory, if he's using the term accurately, then the research has, by and large, already been done. It may still be ongoing, just as research in evolutionary biology is ongoing. But the fact that evolutionary theory is called a theory means that it is already established with abundant and consistent research as a scientific explanation. It's not hypothetical by that stage. Q. There are different -- you will agree that there are different definitions of theory? A. In science, there's one, and that is that it is an explanation that has been confirmed. Q. There are scientists who have what they call theories that they are just trying to do the research on. They have a theory that this may be an explanation of certain empirical data, and they call it a theory, but it is not the same definition of "theory" as I understand that you're using. A. The way you're using it is very imprecise. It's maybe the layman's use of the term "theory." Laymen typically don't understand theory in the scientific sense. If you are talking about a scientific theory in the precise sense in which it is used in science, you are talking about a confirmed hypothesis, a well-established, well-founded explanation, which is not likely to change. It's conceivable that it could, but it's not likely to. Q. Well, you will agree that Albert Einstein developed the theory of relativity? A. That's how it's referred to. Q. And at the time he did that, he did not have a lab, did he? A. I believe he did a great deal of theoretical work, as he was a theoretical physicist. Q. In fact, he was a clerk in the patent office, was he not? A. He was, he was. Q. And so he was just looking at the data that was already there and developed an explanation for that data. Isn't that correct? A. But Einstein worked in close association with a great many other people. He didn't just sit in isolation in the customs office or wherever he worked. He worked in close association with people who were integrally involved in scientific research. What Dr. Einstein did, as I understand it, was theoretical physics. There are different areas of physics. Q. Are you aware of Francis Crick and James Watson as the co-discoverers of the famous double helix DNA molecule? A. Yes. Q. They basically looked at all the research that was already there. Isn't that correct? A. I believe that they were also involved in the production of a great deal of research, too, themselves. Q. Is it your understanding that they developed or, quote, discovered the architecture of the double helix DNA molecule -- A. Yes. Q. -- without doing independent research? A. Sir, I can't give you the specifics of what they did. Those two gentlemen were both scientists. They were both, during their lifetimes, very heavily involved in scientific research. I can't give you the specifics of their exact work on that particular area. Q. Well, would you agree that it's a standard -- and maybe you don't have the expertise to give this opinion -- but it's a standard scientific practice for scientists to point to the scientific literature that already exists, to point to experiments and observations that have already been reported on and have been done by other people, and to cite that evidence to bolster their arguments in a particular theory? A. That is part of what scientists do. The review of the scientific literature is certainly not, you know, what all scientists do. All people who are bona fide practitioners of science are involved in the production of data. In addition to that, they review the literature of their scientific peers which presents their data. So all of this peer-reviewed literature must be tied to the production of original data. The literature is not free-floating. It is tied to data. And scientists who do research produce data, and they share it with each other. That is the significance of the peer-reviewed literature. It's the sharing of the data. Q. Correct. And sometimes a scientist will come up with a theory, an explanation of data based upon the literature that already exists. Is that correct? A. That's part of the process, as I understand it. Q. So you would answer yes. Okay. In your report, you discuss the compromise strategy of the Discovery Institute. Do you recall that in your report? A. Could you point me to it? Q. I'll try to find it here. A. Point it to me, please. THE COURT: All right, let's do this. While Mr. Thompson is looking for that -- Mr. Thompson, we've been on this witness awhile. I'm going to take a break. At this point we'll take our morning break, and we'll return. But I would expect you'll soon be out of this witness when we return. In an effort to keep moving here, we're going to have to move on. Your cross has exceeded the time of the direct examination. Now, certainly that doesn't mean that you can't exercise your right to have some more cross-examination, but let's move out of the witness fairly promptly after we return. So we'll take our morning break at this point. We'll return and complete the cross-examination. We'll hear any redirect at that time. We'll be in recess. MR. THOMPSON: Thank you, Your Honor. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 7 (October 6), AM Session, Part 2 THE COURT: You may proceed, Mr. Thompson. MR. THOMPSON: Thank you, Your Honor. BY MR. THOMPSON: Q. Dr. Forrest, I'd like to focus your attention on Page 38 of your report, your expert report. A. 38 of the report? Q. Yes. A. Okay. Q. If you can read to yourself that first paragraph or parts of it to familiarize yourself with the compromise strategy. A. Just the first paragraph? Q. Read as much as you want to familiarize yourself with the so-called compromise strategy. A. Okay. Just give me another minute. Q. Sure. A. Okay. Q. In your expert report on Page 38, you refer to the so-called compromise strategy. Is that correct? A. That's part of a quote I've used. Q. Right. What is the compromise strategy? A. Compromise strategy refers to the efforts in the State of Ohio. The initial efforts were to introduce intelligent design into the state science standards. When the effort to do that, in which the Discovery Institute was involved, by the way, with some Ohio supporters, when that effort ran into opposition, they changed their strategy so that rather than asking for intelligent design to be in the science standards, they simply asked that teachers be permitted to teach or discuss the controversy. That was the compromise. Q. Do you think that the Discovery Institute tried to employ that strategy in this case? A. In the Dover case? Q. Yes. A. I think that the -- first of all, I'm not exactly sure what you're asking me -- MR. ROTHSCHILD: Your Honor -- THE WITNESS: -- or how specific I need to be. THE COURT: Wait. Hold on, ma'am. THE WITNESS: I'm sorry. MR. ROTHSCHILD: The question lacks foundation. I'm not sure what facts Mr. Thompson is referring to. THE COURT: Well, the question was did she think that the Discovery Institute was employing that tactic in this case. How does that lack foundation? MR. ROTHSCHILD: There's no foundation for this witness about what the Discovery Institute did or didn't do in this case. I'm not sure what he's referring to. I mean, there's the Discovery Institute large and their activities nationally, but I'm not sure if Mr. Thompson is referring to something they've done locally. THE COURT: Well, the clarification subsequently was, in the Dover case, and he said, yes, in the Dover case. So the question is specific to Dover, as I understand it. Do you understand it to be that? THE WITNESS: May I ask for a clarification? THE COURT: You may. THE WITNESS: I would like to have one. THE COURT: You may. THE WITNESS: Are you asking me if the Discovery Institute is working with the Dover board? Is that part of your -- BY MR. THOMPSON: Q. No. Maybe I should rephrase it then. You mentioned what the compromise strategy was. Correct? A. In Ohio. Q. In Ohio. And you then referred to some quotes that Stephen Meyer made regarding the Dover School Board. There's a quote right in that paragraph. A. Yes, that's correct. Q. And I'm asking you, was the compromise strategy attempted in the Dover School Board case of the curriculum change? MR. ROTHSCHILD: Objection, Your Honor. It's still not clear what Mr. Thompson is asking, whether he's asking about Discovery Institute involvement specifically with this board, with this community, or whether he's just talking about, you know, the Discovery Institute in the air. MR. THOMPSON: Your Honor, I'm referring to what she said in her report, Page 38 of her report where she discusses the compromise strategy and then makes some statements about whether it was being applied by Discovery or attempted to be applied by Discovery in -- THE COURT: So is the question whether the compromise strategy, as referenced on Page 38 of the expert report, was employed by the Discovery Institute in this case? MR. THOMPSON: Yes, Your Honor. THE COURT: Well, there we said it. There's the question. THE WITNESS: Yes. Now I can address it, because I don't think we're talking about the same thing in each instance. In the Ohio case, representatives of the Discovery Institute were working, they were publicly involved and they were working with supporters in Ohio, a couple of whom are on the Ohio Board of Education, and they were working together to try to promote intelligent design, to get it included into the science standards. When they encountered opposition, they changed their strategy. That's what happened in Ohio. What I see happening with respect to Dover is that the Discovery Institute, regardless of what the Dover board may be doing or not doing, they are also trying to adjust their position strategically so as to -- I've seen them say some different things at different times. What I'm referring to outside the quote -- there's the quote that refers to the compromise strategy that was devised in Ohio. What I'm referring to subsequent to that quote, in the lines just after it, are to the very typical strategic shifts that the Discovery Institute makes in the way they express their position. That is something that they have a habit of doing. And I think they have done that in this case. BY MR. THOMPSON: Q. I think that answers the question. Thank you, Professor Forrest. In your testimony, you place a great deal of emphasis on peer review. Is that correct? A. Yes, because the scientific community places a great deal of emphasis on that. Q. And based upon your research, is it accurate to say that peer review has sometimes been used to obstruct the advancement of valid scientific ideas? A. If I could get you to clarify what you mean by "obstruct." Q. Prevent the scientific idea from gaining acceptance. A. What the peer-review process is designed to do is to make distinctions, distinctions between scientific claims that are well-founded and scientific claims that are not. And so there are inevitably -- and I have scientist friends who have experienced this. Every scientist who submits materials for peer review gets rejections. So if you're referring to that, that's a very common practice. Q. Well, one of the famous cases, I guess, is Gregor Mendel and his theory of genetics? A. Gregor Mendel the monk? Q. Yeah. Are you familiar with what happened there with his theory? A. Not as it refers to -- not as it refers to obstructing publication. I'm not sure what you're getting at. Q. Well, he had this theory and he gave it to a botanist to review, and it sat there for 40 years. Right? A. Well, the case with Mendel is, I don't think anybody recognized the significance of his research at the time. It wasn't until well after the turn of the century that people understood the importance of his work. I don't think anybody was deliberately trying to obstruct his work for conspiratorial purposes. It was just that -- even Darwin didn't understand the significance of it. It took a little while. Q. Now, we mentioned a letter that you had written to the House of Representatives and the Senate regarding the Santorum amendment. Do you recall that? A. Yes. You said you have a copy. Q. Yes. MR. THOMPSON: May I approach the bench, Your Honor? THE COURT: You may, the witness. MR. THOMPSON: The witness. THE COURT: Yes. MR. ROTHSCHILD: Mr. Thompson, can we have a copy? THE WITNESS: This is not a copy of the letter, sir. BY MR. THOMPSON: Q. Isn't that the letter? A. A copy of -- Oh, oh, okay. I see. This is the letter with a number of signatories, yes. Q. Yes. A. Yes, yes, I'm sorry. Yes, I do recall this. This was not a letter I wrote. Q. You are a signatory to that? A. I'm a signatory to this, yes. Q. Does that refresh your recollection? A. Yes. Without being able to read it word for word, I do recall this letter being written. MR. ROTHSCHILD: Your Honor, may counsel have a copy? THE WITNESS: And could I keep a copy? THE COURT: If they're going to ask you questions, if he's going to ask you questions, you're certainly entitled to a copy. Let's let Mr. Rothschild look at it first. MR. ROTHSCHILD: Just give me a moment, Your Honor. THE COURT: Certainly. BY MR. THOMPSON: Q. This letter was dated -- strike that. This letter was signed by several individuals in the scientific community. A. Excuse me, are you going to question me about the letter? If you are, I'd like to have a copy, please. THE COURT: You can approach the witness, and if there's something that -- MR. THOMPSON: It's going to be pretty general, Your Honor. THE COURT: Well, if you need it to ask questions, you can stand near the box. You can look on it, and then you can give it to the witness if you only have one copy. THE WITNESS: May I have just a moment to review it? MR. THOMPSON: Sure. THE WITNESS: Okay. BY MR. THOMPSON: Q. This letter, as I indicated, was sent as a joint letter from scientific and educational leaders to the Senate and to the House of Representatives. A. I believe it was sent to the conference committee. Representative Boehner was one. Q. It was Honorable Edward M. Kennedy, Chairman? A. Yes, conference committee. Q. And then the Honorable John Boehner, Chairman. One from the House of Representatives and one from the Senate? A. That's correct. I think his name is pronounced Boehner, but I'm not sure. Q. And the purpose of that letter was to try to prevent adoption of the Santorum amendment. Is that correct? A. That's correct. Q. Now, there was another letter you sent to Simon Blackburn. Do you remember that letter? A. I do. Q. And that was a letter to a particular participant or potential participant in this conference that was going to be put on by Bill Dembski. Is that correct? A. The Nature of Nature conference at Baylor. Q. Right. And do you remember why you wrote that letter to Mr. Blackburn? A. Yes. I wrote the letter as a professional courtesy to a fellow philosopher to inform him of the nature of the event in which he would be participating. At that particular time people did not realize that this was a conference that had been organized by creationists. And I thought, as a member of Professor Blackburn's discipline, having the knowledge of what this event was about, as a professional courtesy, I would make him aware of that. Q. And your purpose of doing that was to in some way persuade him not to attend? A. No. Did you read the letter, sir? Q. Yes, I did. A. Okay. In that letter, I specifically say, my purpose is not to persuade you not to go because I understand that you are already committed. It specifically says that. Q. But you ask him or invite him to talk to other people about it? A. Yes. I didn't want him just to take my word for what was in the letter. The thing that was proper to do is to refer him to other people who could corroborate what I was telling him. Q. Do you know if he did attend that conference? A. He did not attend. He declined to attend. Q. Was part of the reason for his declination the fact that he received this information from you? A. Yes. It was the fact that he had read the letter. May I give you more information about that? Q. I'm trying to speed it up. Your attorney can ask it. A. There's a bit more to the story. Q. If it's not a complete answer, certainly you should give a complete answer. A. Dr. Dembski acquired a copy of that letter and, without my permission, posted it on his Web site. Accusations were made that I had persuaded -- that I had written to a number of people persuading -- asking them to jump ship and not to go to the conference. That accusation does not reflect the contents of the letter. So I would like to clarify that. Q. There were other attempts to -- there were attempts from other evolutionists to contact potential attendees at that conference? A. I know what I did. I don't know what other people did. Q. Now, you claimed in your direct testimony that you did some kind of a Medline search on the issue of intelligent design to see if there were any peer-review articles out there? A. Yes, I did that several times. Q. And I believe you gave us the phrase that you did the search on? A. No, I said I did a key word search and a subject search. Q. What was the key word search? A. I was working with the reference librarian at the library where I teach, and we used a variety of key words. We used intelligent design, design theory, all of the variations of that. Q. And you claim that you did not find any peer-review articles? A. There were none. Q. You did not find the article by Behe and Simon about simulating evolution by gene duplication of protein features that require multiple amino acid residues? A. I found a number of articles by Professor Behe, but they were not articles that used intelligent design as a biological theory. He has done some bona fide scientific work. Q. That was in protein science in 2004? A. That was a recently published article that came out since I've done my work and my research. I'm aware of that article. Q. Are you aware of a peer-review article by Chiu, C-h-i-u, and Lui, L-u-i, entitled, Integrated Use of Multiple Inter -- excuse me, Use of Multiple Interdependent Patterns for Biomolecular Sequence Analysis? A. I believe I ran across that one. Q. Okay. THE COURT: Easy for you to say. BY MR. THOMPSON: Q. But you did not mean to reference it in your report? A. Excuse me? Q. You didn't reference it in your report? A. This is one of a number of publications that intelligent design proponents have claimed support intelligent design. They have all been reviewed by qualified scientists, and I'm aware of that fact and I'm aware of their findings that these articles do not actually support intelligent design theory. Intelligent design theory is based on the supernatural, and so it's not likely that you'll have scientific evidence that will support that. Q. Well, whether it's based on supernatural is an issue that we have in dispute. But you did not find that article when you did your peer-review search? A. That article was not out yet, I don't think. Q. What about Thornhill and Ussery, A Classification of Possible Routes of Darwinian Evolution? A. Yes. That's by Dr. David Ussery and Dr. Thornhill, yes. Q. And that was devoted to analyzing Dr. Behe's concept of irreducible complexity? A. They were responding to Dr. Behe's claims about that. Q. And so that would be a yes to my question? MR. ROTHSCHILD: A yes to what? THE WITNESS: I'm sorry, what -- BY MR. THOMPSON: Q. The question was, they were responding to analyzing Dr. Behe's concept of irreducible complexity? A. Yes, that's what they were doing, yes. Q. Okay. And did you come across two articles by Douglas Axe appearing in the Journal of Molecular Biology? A. I did. Q. One was Extreme Functionality -- excuse me, Extreme Functional Sensitivity to Conservative Amino Acid Changes on Enzyme Exteriors? A. Yes. In fact, I e-mailed Dr. Axe to find out his position on whether those articles support intelligent design theory. Q. And did you find an article by Douglas Axe entitled, Estimating the Prevalence of Protein Sequences Adopting Functional Enzyme Folds? A. Yes. I found essentially all of Dr. Axe's publications. Q. And so those intelligent design scientists have been writing in peer-review magazines, have they not? A. Those are not -- MR. ROTHSCHILD: Objection. Mischaracterizes -- it's an improper question. It lacks foundation. He's characterizing them as intelligent design scientists. I think Dr. Forrest is testifying there's nothing about intelligent design in those articles. MR. THOMPSON: That wasn't my question, Your Honor. My question, those intelligent design scientists. THE COURT: Well, you characterized them as intelligent design scientists, and Mr. Rothschild's objection is that they're not intelligent design scientists, all of them, at least. MR. THOMPSON: Okay. THE COURT: So I think the question in that sense needs to be rephrased. MR. THOMPSON: I can change it, Your Honor. THE COURT: I'll sustain the objection. BY MR. THOMPSON: Q. Those scientists that I just mentioned have been publishing in peer-review magazines. Is that correct? A. They publish their legitimate scientific research data in peer-review magazines -- I'm sorry peer-review journals. Those are not articles that support intelligent design theory. Dr. Axe's work, as I understand it, as my coauthor has reviewed and evaluated it, it's perfectly solid scientific work. There's nothing in it that supports intelligent design theory. And Dr. Axe himself declined to say that it did when I specifically asked him to do that or what was his position. Q. Are you familiar with instances where peer review has been used to obstruct advancement of the intelligent design theorists? A. I would not put it in your terms, but I'm aware of cases in which articles have been declined through the -- Q. Excuse me? I didn't hear that. A. I'm aware of instances in which articles reportedly have been declined through the peer-review process, but I'm not sure that I would put it in exactly the terms that you just did. Q. So there have been instances where articles submitted by intelligent design theorists have been declined from publication in peer-review journals? A. Dr. Behe has submitted articles which were declined because they don't produce any data, did not produce any data to support intelligent design. What he typically writes is responses to his critics, which is not the same thing as a peer-reviewed science article. Q. Are you familiar with instances where persons who have advanced intelligent design theory have been retaliated against by the scientific community? A. No, sir, I'm not. Q. Are you familiar with the instance involving a biologist by the name of Richard -- or Dr. Sternberg? A. I'm familiar with the instance in which Dr. Sternberg published an article in the journal of which he was editor, the Dr. Meyer's article. I'm familiar with that. Q. Right. And Richard Sternberg is a trained evolutionary biologist. Are you familiar with that? A. Yes. He's also a member of a creationist organization. Q. And he was an editor of the peer-review journal, Proceedings of the Biological Society of Washington? A. Yes, sir. And I believe he's also on the editorial board of a creationist publication, as well. Q. And one of his responsibilities was to oversee the publication of peer-reviewed technical articles? A. That was his responsibility as editor of the Proceedings of the Biological Society of Washington. He was the -- I believe, the editor in chief, I believe. Q. And he allowed the article by Stephen Meyer, who we know, entitled, The Origin of Biological Information and the Higher Taxonomic Categories, to be published after a peer review. Correct? A. There are quite a number of questions surrounding his allowing publication of that article, but, yes, it was published in the Proceedings. Q. And as a result of that, there were allegations of retaliation against Richard Sternberg. Are you aware of that? A. I am aware that Mr. Sternberg has made allegations. Yes, I'm aware of the fact that he has made allegations. Q. Okay. And those allegations involve transfer to a hostile supervisor, removal of his name from the placard on the door, deprivation of work space, loss of his keys. Are you aware of those allegations? A. I know that he's made those allegations, but that came up at a period when I was very busy preparing for this trial, so I did not specifically follow up on those allegations. I do know that on a television show he made allegations against the National Center for Science Education which happened to be false. Q. Well, are you -- strike that. Do you know that those allegations were investigated by the United States Office of Special Counsel? A. I do know that. I don't know that they ever issued a formal report about it. Q. Well, are you aware that the report did substantiate claims of retaliation by Richard Sternberg? A. I would not say -- MR. ROTHSCHILD: Objection, Your Honor. He's characterizing a document without giving it to the witness. MR. THOMPSON: I'm just asking if she's aware, Your Honor. MR. ROTHSCHILD: He's not referring to specific statements in the report. THE COURT: Well, I don't know that he has to show her the document. You can answer the question. If you need clarification, you can ask for it. I'll overrule the objection. You can answer the question. THE WITNESS: I'm aware that allegations were made. I'm not aware that they have been substantiated. BY MR. THOMPSON: Q. Well, you indicated that one of the allegations was that the NCSE helped devise a strategy to remove Dr. Sternberg? A. I didn't specifically say what the allegation was. I said he made allegations on the Bill O'Reilly Show, which was the show he was on, that were false. Q. Do you know those allegations? A. I believe he talked about the NCSE's working with the -- I don't have a transcript in front of me, so my memory may not be exactly accurate here. I think he was referring to an allegation that he made that the National Center for Science Education was instrumental in getting the article repudiated, I believe. I would have to go back and check. But I did watch the interview, and I do recall noting that what he was saying was not correct. Q. Well, are you aware that the Office of Special Counsel did, in fact, confirm that there was retaliation sponsored by the NCSE? A. The NCSE -- MR. ROTHSCHILD: Objection, Your Honor. Hearsay. And I renew my objection. I mean, he's characterizing a report that has presumably specific findings, and I'm not sure why he wouldn't make that available to the witness, which she has already said she hasn't seen. MR. THOMPSON: Your Honor, she can answer whether she's aware of it or not. There is a report out there. We can get it during a break. But I don't know if that's really necessary. THE COURT: I think we're now right on the edge, if we haven't already gone afield, of what's appropriate with this witness's testimony. And we may be beyond direct, but that objection hasn't been interposed. I could raise it sua sponte, but I'm not going to do that at this point. If you're going to ask questions generally, you may certainly do that. And to that extent, I'll overrule the objection. However, if you've got a document in your hand and you're asking questions from that document -- and it looks to me that at least at times you are -- fairness would dictate that you let the witness see the document and review the document so we don't play cat and mouse. MR. THOMPSON: Right. Your Honor, I don't have the actual report in hand. I have some statements that were made regarding the reports. But I know the report is on the Internet, and I can get a copy of it. I don't know if we have to go that far at this point because I'm wrapping up my -- THE COURT: Well, you're stuck with the answers you get. MR. THOMPSON: Right. THE COURT: I mean, you're going to have your own case-in-chief, and you may or may not consider that something that you want to put in. I mean, we're into the yes/no realm as it relates to the question. So I'll overrule it. We've got to move through this witness. We've been on this witness now a day and a half almost. So let's keep moving. BY MR. THOMPSON: Q. Aside from Richard Sternberg, Dr. Sternberg, are you aware of any other allegations of retaliation against biologists, scientists, who have advocated the intelligent design theory? MR. ROTHSCHILD: Your Honor, I will now object to exceeding the scope of direct. Thank you for the suggestion. It's going well beyond. THE COURT: As I said, I think Mr. Thompson has walked it to the line. I'm going to let him finish this line of questioning. I'll overrule the objection, despite my invitation for you to object. MR. ROTHSCHILD: I'm a good listener, Your Honor. THE COURT: Be careful what you wish for. You may answer the question. THE WITNESS: Could you explain to me specifically what you mean by "retaliation"? BY MR. THOMPSON: Q. Acts similar to what Dr. Richard Sternberg alleged. A. I haven't seen anything that quite comes close to that. There have been cases in which a number of -- well, there are not that many. University faculty have received quite a bit of strong criticism for talking about intelligent design in improper settings. MR. THOMPSON: Thank you, Your Honor. Thank you for your indulgence. THE COURT: All right, Mr. Thompson. That will complete the cross-examination. Any redirect, Mr. Rothschild? MR. ROTHSCHILD: Yes. Thank you, Your Honor. May I approach the witness? THE COURT: You may. MR. ROTHSCHILD: Matt, could you pull up the two graphs of comparing creationism and intelligent design. REDIRECT EXAMINATION BY MR. ROTHSCHILD: Q. Dr. Forrest, is it accurate to say this graph indicates that "creation," or as you've used the word its "cognates," appears probably between 150 and 180 times in those first four drafts that you reviewed? A. That's correct. That's what the graph shows. Q. And I've placed before you a copy of P11, which is the 1993 version of Pandas. And could you tell me how many pages this published version has? A. Counting everything with the index -- Q. Why don't we just go through the text before the references. A. Just the text? Q. Yes. A. Okay. Q. Or, actually, I'm sorry, why don't you include the references and glossary. A. Everything, counting everything, index and everything, it's 170. Q. Were the drafts that you reviewed of approximately the same length as the final version? A. Pretty much, just about. Q. So is it fair to say that "creation" appears about once per page in these drafts of Pandas? A. Yes, on average. Q. Mr. Thompson asked you about James Dobson and also Mr. Kennedy. Those are leaders of religious organizations? A. Yes. Q. And they are strong supporters of intelligent design. Correct? A. They are. Q. And they don't -- do they otherwise support scientific research generally as part of their mission? A. Not as far as I know. Q. Dr. Forrest, could you open your book -- or, actually, let me just hold that question for a moment. Mr. Thompson asked you about the concept of secular humanism. A. Yes, he did. Q. That's a philosophical position. Correct? A. Yes. Q. Should that be taught in science class? A. No. Q. Is the humanist manifesto that Mr. Thompson referred to also a philosophical position? A. It is. Q. Should those principles be taught in science class? A. Certainly not. Q. In your view, is intelligent design a philosophical or a theological position? A. It's a religious position which overlaps philosophical, too. Q. Should that be taught in science class? A. No. Q. As regards the theory of evolution, does the scientific community that studies it begin their research into it by looking at passages of Scripture and then looking for scientific evidence that's consistent with that Scripture? A. No. Q. Is that what major figures in the intelligent design movement have described themselves as doing? A. Yes. Q. Mr. Johnson? A. Yes. Q. Mr. Dembski? A. Yes. Q. Could you now open your book, Creationism's Trojan Horse, to Page 241. And, actually, if you see at the beginning of 240, when Mr. Thompson was asking you about the Santorum amendment, he had you read from the text beginning on Page 240 through the numbered items on 241. Do you recall that? A. Yes. Q. Okay. And then he asked you to stop reading at that point? A. Yes. Q. Could you read the next paragraph? It begins with the words, I will read. A. Yes. This is Senator Santorum's words. Quote, I will read three points made by one of the advocates of this thought, a man named David DeWolf, as to the advantages of teaching this controversy that exists. He -- Q. That's enough. Who is David DeWolf? A. David DeWolf is a law professor at Gonzaga University. He is also a fellow of the Center for Science and Culture and is one of the -- is integrally involved in the intelligent design movement. Q. That's the same Center for Science and Culture that prepared the Wedge document? A. Yes. Q. The title, Creationism's Trojan Horse, why did you select that? A. That was actually suggested by Oxford University Press. And my coauthor and I considered it and decided that that was an apt description. Q. Why? A. Well, the story of the Trojan horse is the story of the Greeks offering a wooden horse, a Trojan horse, to the city of Troy, ostensibly as a gift, something that would have positive value for them. And, in truth, what that gift contained was something that worked to the destruction of the city. That's the story. Q. And why is that an apt title for your book about intelligent design? A. Well, what the intelligent design movement is saying is that they are offering a cutting-edge, new scientific theory that will balance the curriculum and present an alternative scientific theory. In truth, it is no such thing. It is a religious belief which is being described as a scientific theory, but, in truth, it is not. It would not be beneficial to teach this to children as science. Q. When this book was published and you accepted the title suggested by your publisher, did you know that the book Of Pandas and People had, in fact, been drafted as a creationist book using the term "creation" and "creationist" throughout? A. When I wrote this book? Q. Yes. A. No, I didn't know that. Q. Is it fair to say that the metaphor is even more apt now? A. I would say so. MR. ROTHSCHILD: No further questions, Your Honor. THE COURT: Any recross, Mr. Thompson? MR. THOMPSON: Just one bit, Your Honor. THE COURT: There's not much scope to work within. MR. THOMPSON: I know, the book. RECROSS-EXAMINATION BY MR. THOMPSON: Q. I want you to go to Page 241 that was referred to by your counsel. And you were reading a part of the report of the Santorum amendment. A. Yes. Q. I would like you to read the last paragraph, which purports to be comments by Senator Santorum. A. Just the very last one? Q. Yes. A. (Reading:) I think there are many benefits to this discussion that we hope to encourage in science classrooms across this country. I frankly don't see any downside to this discussion, that we are standing here as the Senate in favor of intellectual freedom and open and fair discussion of using science, not philosophy and religion within the context of science, but science as the basis for this determination, end quote. MR. THOMPSON: Thank you. That's all, Your Honor. THE COURT: All right. We thank you, Professor. That will complete your testimony. You may step down. The plaintiffs may call their next witness. MR. SCHMIDT: Your Honor, plaintiffs call Jennifer Miller. THE COURT: All right. JENNIFER MILLER, called as a witness, having been duly sworn or affirmed, testified as follows: THE CLERK: State your name for the record and spell it, please. THE WITNESS: My name is Jennifer Miller, capital J-e-n-n-i-f-e-r, capital M-i-l-l-e-r. THE COURT: You may proceed. MR. SCHMIDT: Your Honor, Tom Schmidt for the plaintiffs. DIRECT EXAMINATION BY MR. SCHMIDT: Q. Are you employed by the Dover Area School District? A. Yes. Q. In what position? A. Biology teacher. Q. How long have you worked for the Dover Area School District? A. This is my thirteenth year. Q. What courses do you teach? A. Currently I teach biology, honors biology, and anatomy and physiology. Q. Do you have any seniority within the science department at the Dover Area School District? A. Our department head, Mrs. Spahr, has been there for, I believe, 41 years, and I am next under her with 13 years. Q. In connection with this litigation, did you produce documents in response to written discovery that was sent by plaintiffs to the defendant, Dover Area School District? A. Yes. Q. I may ask you some questions about documents. MR. SCHMIDT: And, Your Honor, may I approach the witness with a binder of exhibits? THE COURT: You may. And that reminds me, we did not take up any exhibits, my omission and yours, too, Counsel, with respect to Dr. Forrest. And I think that's probably a good thing so that we can move along, but I'll rely on you to pick that up at some opportune time. Principally, I'll rely on plaintiffs' counsel. There may be some defendants' exhibits. I think there are. You may proceed, Mr. Schmidt. MR. SCHMIDT: Thank you, Your Honor. BY MR. SCHMIDT: Q. Ms. Miller, let me ask you a few questions about your own educational background. Where did you receive your own undergraduate degree? A. Elizabethtown College. Q. When did you receive the degree? A. 1993. Q. What was your major? A. Biology. Q. Did you attend any postgraduate courses? A. Yes. Q. Did you receive a degree? A. Yes. Q. In what? A. I have a master's of education. Q. From what institution? A. Penn State. Q. When did you get it? A. 1999. Q. What was the principal subject area of your master's? A. A focus in teaching in the curriculum. Q. Are you certified to teach by the Commonwealth of Pennsylvania? A. Yes. Q. When did you obtain your certification? A. 1993. Q. Must you be certified to teach in Pennsylvania? A. Yes. Q. How are you certified? I mean, what is the nature of your certification? A. You have to have a degree in the area that you are going to teach, and then you have to have two examinations. They're called the NTEs. One is in your subject area. Mine was biology. And you also have to have an exam in general knowledge of education. Q. Must you do anything after you receive your certification to maintain it? A. Yes. Q. And what have you done to maintain your certification? A. Every five years you have to have so many credit hours or in-service hours or credits to maintain your certification. Q. And have you done that since you became a certified teacher in Pennsylvania? A. Yes. Q. I'm going to ask you some questions now about events at the Dover Area School District. A. Okay. Q. First of all, I think you've indicated this in your testimony, but you have taught always in the senior high school. Is that right? A. Yes. Q. Do you remember a time in the spring of 2003 when you spoke to the department chair, Mrs. Spahr, about a board member and concerns about how biology is taught at the area high school? A. Yes. Q. What do you recall about that conversation? A. Mrs. Spahr mentioned to us, I believe it was probably at a department meeting, that she had received a memo or had been speaking to administration about a board member's I guess wanting equal time with creation and evolution. Q. Let me ask you a few questions about that conversation. First of all, you said she had spoken or had some communication with administration. Did she mention anyone in particular in the district administration? A. I believe she said Mr. Baksa. Q. And who is Mr. Baksa? A. Our assistant superintendent. Q. Is he the assistant superintendent now? A. Yes. Q. And did Mrs. Spahr identify the board member that was the subject of this conversation? A. I don't remember at that time, no. Q. Can you remember anything more that she said than that a board member wanted equal time for the teaching of creationism? A. I think she was unsure as to what that meant. And I think she may have mentioned something, you know, that we need to be on our guard or something to that effect. Q. Let me ask you a few questions now about how you teach evolution within your biology classes. A. Okay. Q. Let me go back to be sure it's clear. You teach two biology classes or two sorts of biology. Is that right? A. Yes. Q. Biology I? A. Yes. Q. Is there another biology course that you teach? A. Just honors biology, which is still the same students, just a higher level. Q. Both classes are taught in the ninth grade at the present time? A. Yes. Q. How do you go about teaching evolution to your biology students? A. Day one I ask them for their definitions of evolution because I think there are a lot of misconceptions as to what evolution means. So we get their definitions. And I basically state that evolution means change over time, and that's how we're going to approach evolution. And then we give -- I have the students come up with examples of how things changed over time. And most of them can give me examples that things have changed over time. So I, you know, tell them that basically there is a lot of controversy over beliefs, I guess, how life began. And I basically say that we're not going to touch on how life began. I think I basically say, I don't care how you believe life began, we're going to look at what has happened to life since it got here, however it got here, and move on from there. Q. There's a phrase that I'll ask you questions about as we go forward, but it has certainly come up in this litigation, the phrases "origin" or "origin of life." Is that something that you teach in the ninth-grade biology class? A. No. Q. Do you teach something about the origin of species in ninth-grade biology? A. Yes. Q. Can you tell me a little bit about that? A. The origin of species, sometimes called speciation, for example, would be -- and I'll use Darwin's finches as an example, that they were finches and now are isolated on different islands, the Galapagos Islands, and have become different species of finches, still a finch but different species of finches. To me that's speciation. Q. Are you familiar with state standards for teaching biology in the public schools in Pennsylvania? A. Yes. Q. Would you turn in your book to Plaintiffs' Exhibit 210. There are tabs on the side. Can you identify what's been marked as Plaintiffs' Exhibit 210? A. Yes. Those are the state standards in science and technology. Q. If you look at the first page, is there a date on the bottom? A. January 5th, 2002. Q. When did you become aware that there were state standards for the teaching of biology in Pennsylvania's public schools? A. They went through several revisions, but I believe somewhere around summer of 2001 is when we got our final copy of the state standards in science. Q. And in your work as a teacher at Dover, do you refer to or rely on the state standards? A. Yes. Q. In what way? A. We are required to teach to the standards. In each subject area, we must make sure that students are competent in those standards in the area that we teach. We also, when these came out, we made sure our curriculum was aligned to the state standards. And at that time we did some changing and rearranging of some things because of the state standards. Q. Let me ask you a few questions about that. You said that "we" made some changes to the curriculum. Were you personally involved in that process? A. Yes. Q. Tell me what you did. A. Looking at the state standards and their emphasis, I guess you want to say, we -- at that time we taught biology to tenth graders, and we had an earth science class in ninth grade. And we also saw that the standards were -- there's a whole other set of standards on environment and ecology, so we felt that students needed environment and ecology, so we moved our biology classes to ninth grade to then offer an environment and ecology class in tenth grade. We also looked at, again, where our emphasis was in biology to make sure that we -- I remember taking some things out that we currently taught in biology and making sure we hit things that were in the standards. Q. At the time the standards came out in 2002 or somewhere in that neighborhood -- you can correct me if you can -- did the Dover Area School District participate in a field test of an examination in high school biology? A. Yes. Q. Tell us about that. A. Currently we have standardized tests in math and English. And it's to eleventh graders. And the proposal at that time was to take a standardized test in science in the tenth-grade year, and they were field testing the examination, and we were involved in that field test. Several of our classes took the field test, I guess to look at data and that kind of thing. Q. And in teaching to the standards, is it anticipated that at some time public school students in Pennsylvania will be tested against the standards in biology? A. Yes. Q. When do you anticipate that that test will first be used? A. I believe 2007. Q. Did your experience with the field test of that assessment examination affect how you taught biology at Dover High School? A. Yes. Q. In what way? A. We felt that the field test that our students were given -- we had a chance to, you know, look over some questions, and we thought that especially some of the essay questions were very heavy in evolution. Q. Could you turn to Page 13 of Exhibit 210. A. Okay. Q. If you look at the subsection that starts with the capital letter D -- A. Yes. Q. -- is that section that carries on to the next page the state standard for the teaching of evolution in high school biology? A. Yes. Q. Now, I noticed that the standards, if you look back to the beginning, appear to be focused on teaching biology in tenth grade. A. Yes. Q. Is that right? A. Yes. Q. Was the Dover School District free to move the biology course to ninth grade? A. The test was in tenth grade, so as long as they covered this material before the test in tenth grade, yes. At that time that's what the test was supposed to be. Q. When you, at the Dover High School, separated biology and environmental sciences, you devised two curriculums, one for each course. Is that right? A. Yes. Q. Did the curriculum that you worked on after the standards came out include material on evolution for ninth-grade biology? A. Yes. Q. Do you know if the curriculum for environmental science, which is to be taught to tenth graders, includes information or material on the subject of evolution? A. That I'm not sure of, no. Q. When you structured the curriculum for ninth-grade biology, did you put the unit on evolution at any particular time? A. It's currently at the end. We're on semesters, so we work from August to January, and then again we teach it from January to June. So it would have been at the end of our studies. Q. Why did you put it at the end of the biology course? A. I would say two reasons. One, because of where it fell in the textbook and you need some of the other -- for example, if you look at the standards, it says that they're to analyze DNA studies and look at some -- somewhere it says about mutations and gene recombination, and we wouldn't get to that. You need the background in DNA and genetics before you get to that, so it's after those units. We also thought that it made sense to be at the end also because I think evolution is -- bears heavily on environment and ecology and how populations change and how they compete for resources and things like that. So it lent itself to be at the end because then the next step that they would have would be their environment course. Q. Now, you said a moment ago that you worked on the changes to the high school curriculum once the standards were published? A. Yes. Q. I want to ask you for the details of the changes, but in that process, was there any involvement by board members in changing the biology curriculum? A. No. Q. What happened to the changes you proposed? A. We wrote up a curriculum of studies and then submitted them to the administration. And I believe they are voted upon or approved by the school board. Q. Do you know whether the board actually voted to approve the changes? A. I'm assuming so, yes. I wasn't at the meeting where it was done. Q. To be clear about my question so there's no confusion, whether or not the board voted to approve them, was there any involvement of a board member or board curriculum committee in developing those changes? A. No. Q. Did you continue to teach from that biology curriculum from whenever it was approved, I gather in 2002 until -- or through the year 2004? A. Yes. Q. Now, I'm going to go back to the chronology. A. Okay. Q. You've mentioned a conversation with Mrs. Spahr in the spring of 2003? A. Yes. Q. Do you recall any meeting in the fall of 2003 involving a board member who expressed concerns about how evolution was taught at the Dover High School? A. Yes. Q. Who was the board member? A. Mr. Bonsell. Q. What was his position on the board at that time? A. At that time I believe he was head of the curriculum committee. Q. Did you have a meeting with Mr. Bonsell? A. Yes. Q. Who else was at the meeting, if you recall? A. I believe Mr. Baksa, and I can't remember if Dr. Peterman, who was our principal at the time, was there. She may have been. But I remember most, if not all of the science department was there, also. Q. Was Mrs. Spahr there? A. Yes. Q. Were there any other board members besides Mr. Bonsell? A. No. Q. To your knowledge, at that time were there other board members who were members of a curriculum committee? A. At that time I wasn't aware of what the curriculum committee was, no. Q. Did you know, at the time of the meeting, whether Mr. Bonsell had a child who was attending the Dover High School? A. Yes. Q. What do you know about the child, what grade? A. He was in ninth grade that year. Q. Had that child taken a biology course at the time of this meeting? A. No. Q. Was that something the child would have taken in the course of the ninth grade? A. Yes, I believe he was scheduled to take it in the spring. Q. Did Mr. Baksa or anyone else say anything to you to prepare you for the meeting or that you at least understood to be preparation for the meeting? A. Yes. Q. Who said what? A. I believe at this time is when we mentioned about the statement earlier that I wasn't aware of who the board member was that made the statement about equal time with creationism and evolution. And at this time I believe -- whether it was Mrs. Spahr, Mr. Baksa, made us aware that it was Alan Bonsell that made that statement. We also were told by Mr. Baksa just some background on Mr. Bonsell, that he was what Mr. Baksa said, a young earth theorist or young earth creationist, didn't believe in some of the fossil records or some of the dating of fossil records, I believe. So that was the background we were given. Q. What was your understanding at the time of what it meant to be a young earth creationist? A. Basically that -- I believe they believe that the earth is somewhere around 10,000 years old, didn't believe that the earth was as old as some of the carbon dating and things like that that the evidence shows. Q. At the time of this meeting -- and I think you've said this already -- you were the senior biology teacher. Is that right? A. Yes. Q. Did you become the principal spokesperson for the science department in whatever discussion took place at this meeting? A. As far as in the biology curriculum when he was asking questions about how we taught evolution, then, yes, I became the spokesperson for that. Q. Can you summarize what the questions or concerns were that were expressed by Mr. Bonsell at that meeting? A. His concern was, again, how we taught evolution. And I explained how we taught evolution just as I explained to you, day one where we go with evolution. We did explain that we teach the origin of species, not necessarily the origin of life. His concern was definitely with the teaching of the origin of life. He was concerned that we would convey something to the students that was in opposition to what their parents were conveying to them at home and didn't want to pit the teachers in the middle of, you know, having the students say, well, somebody is lying, basically. So, again, we reiterated that we don't teach the origin of life. We stick with the origin of species. And I remember, at the end of that meeting, that we thought everything was okay. And I remember him even saying that, you know, he agreed with that part of what we taught, too. He was okay with that part. Q. Now I'm going to take you forward in time. A. Okay. Q. Do you recall a meeting in the spring of 2004 with a board curriculum committee? A. Yes, several of them. Q. Do you recall the first such meeting? Or what meeting do you recall, at least, as the first one? A. The first one that I can remember was sometime April, I would say. We were -- there's a rotation of getting new textbooks. And the science department was up in that rotation for getting new textbooks, and we were sort of justifying which textbooks we wanted, how they were significantly different from the previous textbook, why we needed new textbooks, and that kind of thing. Q. Let me ask you two quick background questions. Do you recall what textbook was in use by the biology teachers in the beginning of 2004? A. Yes. Q. Which was it? A. It was the -- I believe it's 1998 was the last time we ordered the books, edition of Miller and Levine's book. Q. Okay. Was that book up for replacement in the -- I'll call it the ordinary cycle before early 2004? A. Yes. Q. When did it first come up for replacement? A. It would have been the year before that. Q. And to your knowledge, was that decision to purchase new books postponed for some reason? A. Yes. Q. Do you know what the reason was or were you ever told by anyone? A. I think it was -- my recollection is that to save money, they were going to put off ordering any textbooks that year, so no one got any textbooks that year. I remember a discussion of a fund balance was going to be used to order textbooks the next year. So no one got textbooks. Q. Now, in 2004, was the subject of this first meeting you recall with the curriculum committee the justification for purchasing a new book? A. Yes. Q. Did you do any work to provide that justification? A. Yes. Q. Can you turn to what's been marked as Tab 148, which is also Plaintiffs' Exhibit 148. A. Okay. Q. Is this the document that you prepared -- A. Yes. Q. -- to justify the purchase? A. Yes. Q. And was it prepared around the time of the meeting in the spring of 2004? A. Yes. Q. Was one of the reasons that you suggested a new textbook to bring it into line with the new curriculum which was based on the new state standards? A. Yes. Q. Does that appear anywhere on this page? A. Number 3, the order of the textbook aligns itself to our curriculum. Q. At the end of that meeting, what was your understanding about what would happen next with the textbook requisition for biology? A. That they would be put before a vote of the school board. Q. When was the next meeting that you recall having with the curriculum committee in the spring of 2004? A. Sometime very close to the -- if not the last day of school, somewhere around the last day of school in June of that same year. Q. Who was at that meeting? A. It was the curriculum committee, which would at that time have consisted of Mr. Buckingham, Mrs. Harkins, Mrs. Brown, I believe Mr. Baksa was there, and I know at least Mr. Eshbach, myself, and Mrs. Spahr were there. Q. At this meeting what were you told was the subject of discussion? A. We had gotten a list of concerns by Mr. Buckingham on how the textbook presented evolution. Q. Let me ask you to turn to Tab 132. A. Okay. Q. I'm showing you what's been marked as Plaintiffs' Exhibit 132 and ask if you recognize this document. A. Yes. Q. What is it? A. That's the list of concerns we had gotten given to us by Mr. Baksa. Q. Now, before I ask you some questions about this list of concerns, were you in attendance at a school board meeting on June 7th? A. I don't believe so. Q. Do you recall hearing from anyone that there was a discussion about a mural at the school board meeting on June 7th? A. Yes. Q. Was there a discussion about a mural at the board curriculum committee meeting that you're now testifying about near the end of school that June? A. Yes. Q. What was that discussion? A. My recollection is that someone mentioned something about a mural, I don't know, held up a picture or something like that at a previous board meeting. And at the June -- I think it's somewhere around June 14th meeting of the curriculum committee, Mrs. Spahr asked Mr. Buckingham where he had gotten that picture of the mural. Q. Let me ask you if you knew, when she asked that question, what mural she was referring to. A. Yes. Q. What was the mural? A. It was a mural done by a senior as his senior project that showed basically the evolution of man. It was donated to the school or to a teacher because it was so big he couldn't basically take it home with him, so it was donated to him and it was in the back of his classroom. Q. Does each science teacher at the high school have his or her own classroom? A. Yes. There may be a floater or two that goes between, but yes. Q. You said that the mural was at the back of a teacher's classroom. Was it hanging on the wall, leaning against the wall? How was it -- A. I believe it was propped up on the -- there was a chalkboard on the back, and it was propped up on the chalk tray. Q. Had you ever seen the mural yourself? A. Yes. Q. How big was it? A. It took up the whole back portion of his room, so it was big. Q. Do you remember a time when the mural was no longer in that classroom? A. Yes. Q. At the time that it was no longer there, did you know what happened to it? A. No. Q. Back to the meeting in June of 2004. Mrs. Spahr, as you've testified, asked Mr. Buckingham a question about having a picture of the mural. Who was Mr. Buckingham? A. A member of the school board. At that time I believe he was head of the curriculum committee, also. Q. What was his response to her question about having a picture of the mural, do you recall? A. I think she asked where he had gotten it, and he didn't answer that. And she asked what happened to the mural, do you know what happened to the mural? I believe his words were that I gleefully watched it burn. Q. The mural, as you've described it, depicts the evolution of man? A. Yes. Q. Was there some discussion of the evolution of man or monkeys and men or anything that related to that during this curriculum committee meeting? A. Yes. Q. Can you recapitulate a bit what that discussion involved? A. Most of the discussion focused around, you know, again, I thought you didn't teach origins of life, how can this mural be in the back of a classroom if you don't teach that, what message does that send to the students if you're not teaching it but this mural is in the back, and, again, disagreeing with the whole idea that man evolved, I guess, or came from monkeys. Q. Was that discussion about man's evolution and what was depicted on the mural associated in the discussion of Mr. Buckingham's concerns about the biology textbook that is reflected on what's been marked as Exhibit 132? A. Yes. Q. Explain that, please. A. Some of his -- before this meeting we looked over his concerns and looked at the page numbers trying to just get a general sense of, you know, where his problems were, you know, trying to get an idea. And there was -- I can't point them out specifically, but I know there were several of them -- I remember one of them, for example, said -- it was a teacher-to-teacher section, and it was asking the students -- a suggestion for the teacher to ask students to propose, for example, if humans were sent to another planet and subjected to the environment on that planet, what kind of -- what kinds of adaptations might they have at that new planet and how might they evolve, you know, to occupy that new planet. And that was one of his. So that sort of related to, again, didn't necessarily believe that man evolved, and, you know, if we were asking students to do that, it showed that man evolved and that kind of thing. So it was related to that. Q. Do you recall any comments that Mr. Buckingham himself made about the concerns that are listed on Plaintiffs' Exhibit 132, other than the ones you've already -- A. No, nothing in particular, no. Q. What was your response to Mr. Buckingham's concerns? A. We again reiterated how we teach evolution, sort of the same conversation that we had had with Mr. Bonsell the previous year. And we also pointed out that some of his concerns were in -- he had a teacher's edition, so some of his concerns were in the teacher's edition, and if he was worried about what students would see, they would not get the teacher edition, so they wouldn't see what was in the teacher edition. Q. Do you recall which edition of the biology textbook you were referring to? I don't mean teachers versus student, but date. A. 2002. Q. Was that the one that had been under consideration up to that point? A. Yes. Q. Okay. I'm still at the spring meeting. Did you receive some other documents from either Mr. Buckingham or Mr. Baksa at that meeting? A. Yes. Q. I'd like you to turn to what's been tabbed as P136 and is marked as Plaintiffs' Exhibit 136. A. Okay. Q. Have you seen this document before? A. Yes. Q. Is that your handwriting in the upper right-hand corner, by the way? A. Yes. Q. Did you put that handwriting on there as part of the process of producing documents that I asked you about earlier? A. Yes. Q. What is this document? A. This is a product profile of the textbook that I believe the Bob Jones University uses in their biology instruction. Q. What were you told was the reason for giving you this particular document? A. I just remember giving -- they were doing a survey, sort of, of different textbooks that were out there or different textbooks used, and I just remember getting this one as an example of one that's used in other universities or high schools, that type of thing. Q. You said "they." Who did you mean? A. I know Mr. Baksa gave this to us, so -- Q. Were you asked, as the senior biology teacher, by anyone in the school district administration or anyone on the curriculum committee to get other selections or suggestions for a biology textbook? A. No. Q. Turn, if you would, to the next tab in your book, which is Plaintiffs' Exhibit 138. A. Okay. Q. What is this document? A. This was also given to us at that meeting by Mr. Baksa. It's a survey of biology books used in local -- in York County Christian schools. Q. Do you know who assembled this information? A. It was given to us by Mr. Baksa. Q. At this same meeting? A. Yes. Q. There's handwriting at the top right corner. Was that your handwriting? A. Yes. Q. And did you put that on when you produced this document through discovery? A. Yes. Q. There is another place in the first line where there's handwriting that appears to be the title and publisher of a book. Whose handwriting is that? A. Mine. Q. When were you given that information? A. I believe at that meeting that he was unsure of what the Christian School of York used and found out since then, and so we wrote it in. Q. Did Mr. Baksa tell you at this meeting why he collected information about books being used in parochial or sectarian schools? A. Not really, no. Q. Did he ask you to do anything with this information? A. No. Q. Did you do anything with this information? A. No. Q. Okay. Turn to Tab 148, please. A. Okay. Q. Behind the tab are two pages marked as Plaintiffs' Exhibit 149. Have you ever seen these documents before? A. I'm at Tab 149, not 148. Q. I'm sorry, 149. A. 149. Okay. Yes. Q. When did you see them? A. They were given to us somewhere around this curriculum meeting. I can't remember if they were handed out at that curriculum meeting or sometime before that curriculum meeting. Q. And by "that curriculum meeting," again, we're talking about the one around the end of school in June, '04? A. Yes. Q. And the handwriting on the top of the first page is your handwriting. Is that right? A. Yes. Q. And put on this document when you were producing it in response to discovery? A. Yes. Q. Okay. Was there any discussion of the first page in Exhibit 149 called, Beyond the Evolution versus Creation Debate at the curricular committee meeting? A. No, not that I can recall. Q. Was there any discussion of the next page, which appears to chart out different views on the origin of the universe and life at that meeting? A. No. Q. Now, I'm going to take you to another meeting about this same time. Did you attend a meeting of the school board on June 14th, 2004? A. Yes. Q. Do you recall at that meeting a person named Charlotte Buckingham making a statement during the public comment portion of the meeting? A. Yes. Q. Tell us what you recall about her statement. A. I remember her reading many Bible verses, I know some were from Genesis, and stating that basically this is the truth and how can we teach anything else. Q. Was it your understanding at the time she made this public statement that it was related to something on the agenda of the school board? A. Yes. Q. What was it, as you understood it, that was on the agenda that she was speaking to? A. I believe at that time it was the purchase of the textbooks. Q. The biology textbooks? A. Yes. Q. Do you recall if Mr. Buckingham made any statements during the meeting of the school board on June 14th? A. Yes. Q. What do you recall he said? A. I remember him -- again, I wasn't at the June 7th meeting, but because of statements he made at the June 7th meeting, that he was asked to sort of tone down some of his remarks that were made at the June 7th meeting. And he said something to the effect that I am who I am, and if you don't like it -- I'm going to state my beliefs, and if you don't like it, you can vote me out at the next election. Q. Did he make any other statements about his beliefs or views on subjects pertinent to the purchase of the textbook? A. Yes. Q. What did he say? A. I believe there were several. I remember him saying something about, again, this nation being founded on Christianity, and we should teach as such. I also remember him saying, 2,000 years ago, someone died on the Cross, shouldn't someone take a stand for Him now. Q. Did he make any statements about the separation of church and state? A. I believe so, yes. Q. What did he say? A. That the separation of church and state was a myth. Q. Did the school board, on June 14th, take action on the purchase of a new biology textbook? A. No, I don't believe so. Q. Forward to the next meeting the following month. Did you have a meeting with anyone about the purchase of a new biology textbook? A. Yes, sometime in the middle of July. Q. Who did you meet with? A. It was Mrs. Spahr, myself, Mr. Baksa, and Dr. Nilsen was sort of in and out at that meeting. Q. Was this meeting at the school administration office? A. Yes. I think it was in Mr. Baksa's office. Q. What was your understanding of the purpose of the meeting? A. At that point I believe that the purchase of the textbooks was tabled because we found out that there was a 2004 edition of the Miller and Levine textbook, where we had ordered the 2002 edition, so now there was a brand-new edition. So we were in his office to basically -- we had a copy of the 2004 edition, and we were comparing the 2002 edition to the 2004 edition. Q. I'm going to take you back to what's been marked previously as the justification. You don't have to look for it. But you recall that you provided a written justification for why the school district should move from the 1998 edition to the then new edition of 2002? A. Yes. Q. The justifications related to the entire book. Isn't that right? A. Yes. Q. When you met with Mr. Baksa and Mrs. Spahr in July, 2004, did you compare the entire 2002 edition to the entire 2004 edition? A. No. Q. Did you focus on any particular part? A. Yes, the evolution chapters. Q. And what did you do in that comparison? A. We basically read over the evolution chapters word for word and compared what it said in the 2002 edition versus what it said in the 2004 edition. Q. I'm going to ask you to turn to Tab 150 and ask Matt to call up Plaintiffs' Exhibit 150. What is this document? A. This is a written representation of the comparisons between the two books. Q. Did you work on the preparation of this document? A. Yes. Q. Did Mr. Baksa work on it? A. Yes. Q. Did Mrs. Spahr? A. Yes. Q. Is this an accurate comparison between the two editions on the subject of teaching evolution? A. Yes. Q. At the same meeting did you receive a copy of the book entitled Of Pandas and People? A. Yes. MR. SCHMIDT: I think that's been marked and admitted, Your Honor, as Plaintiffs' Exhibit 11. THE COURT: It has. MR. SCHMIDT: May I approach the witness? THE COURT: You may. BY MR. SCHMIDT: Q. Ms. Miller, I've shown you a copy of what's been marked as P11. Do you recognize that as a copy of Pandas and People? A. Yes. Q. If you would -- and I think this is probably in the record more than once -- but would you turn to the copyright page and tell us what the copyright date is on that book? A. 1989 and 1993. Q. When you were introduced, if that's the right word, to the book of Pandas and People, who gave it to you, Mr. Baksa or Mrs. Spahr? A. Mr. Baksa. Q. Did he say anything to you about why he was showing it to you or giving it to you? A. Basically here's the book, I don't know, given to him, look over it, tell me what you think. Q. Did you look it over? A. Yes. Q. Did you read the entire thing or portions of it? A. There are introductory chapters, and then there are more in-depth chapters. I believe I read the introductory chapters. I think there are six of them. Q. When Mr. Baksa gave it to you and said, look it over, tell me what you think, did he tell you at that time that this book was under consideration as a companion text to go along with the biology textbook? A. No. Q. Did he tell you at that time that Of Pandas was under consideration as a reference text to be placed anywhere in the school building? A. No. Q. What did Mr. Baksa tell you and Mrs. Spahr was going to happen with the biology textbook following your meeting in July? A. I believe the next board meeting was sometime in the beginning of August, and it would be up -- the 2004 edition of the book would be voted on at that meeting. Q. Would you have liked to have the textbook you were going to be using in the school year beginning in September in your hands before August? A. Yes. We were concerned because, again, the students were coming to us at the end of August, and our textbooks were still not in place, and we would like time to look over the textbooks and prepare lessons and things from our new textbook. Q. Now, I want to take you back to Pandas for a minute. You said you read parts of it but not the entire book. A. Right. Q. What was your impression of Pandas as a science book when you read the parts that you did? A. Two things that I focused on. The first one was that when I read it, with my biology degree, I had trouble reading some of it. I thought it was very high-level text, and I was concerned. I didn't know what -- you know, where this textbook was going, you know, if students were supposed to be reading it, that it would be too high of a level for my ninth graders to read. I also had questions, I guess, on some of the science in it, some of the conclusions, I guess I want to say, that it made in the book and how science-related they were. Q. Were you at all concerned about the fact that the book you were replacing was a 1998 copyright, this was a 1993 copyrighted science book? A. Yes. There was a -- there was some discussion on, you know, even if it's an old -- at our first curriculum committee meeting, even if it's a newer book, if it's very similar to the old book, it doesn't necessarily warrant getting a new book. So here we had an outdated book, so, yes, we were concerned about the year. Q. Did you do anything formal to sort of test your first impression that this might be hard going for a ninth-grade student? A. Yes. Q. What did you do? A. I went online and found two different Web sites that allow you to do what's called a readability study of the text. Q. Was doing a readability study something that you learned how to do when you got either your bachelor's or your master's degree? A. Yes. Q. Go on, now. What did you do when you had that material available? A. Basically a readability study is you take random samplings from a text and you look at how many words are in a sentence, how many syllables are in each word, and you plug them in, and they -- it's a formula, and they spit it back to you, basically, on how -- what the level of the reading is, whether it's a third-grade level, you know, fifth-grade level, twelfth-grade level. Q. Do you recall what the results were of the readability study you did? A. Yes. Both of them that I did it was 12 plus, which would have been grade level 12 plus. Q. Okay. Now, moving forward, did you learn sometime after the August school board meeting that the purchase of the 2004 edition of Biology had been approved? A. Yes. Q. Did you attend a curriculum committee meeting with the board curriculum committee members late in the month of August? A. Yes. Q. Who else was at the meeting? A. Let's see. That was -- I believe the board curriculum members, I believe Dr. Nilsen was at that meeting, Mr. Baksa. I believe at that time it would have been our new principal, Mr. Riedel, and, again, at least Mrs. Spahr, Mr. Eshbach, and myself. There may have been other science department members there. Q. What was the principal subject of the meeting on the -- is it the 30th of August? A. I believe so. Q. What was the principal subject of that meeting? A. The Of Pandas book and how it was going to be used in the classroom. Q. Was the Pandas book the first substantive contact you had had with intelligent design? A. Yes. Q. Was that subject something that was discussed at the meeting on August 30th, intelligent design? A. Yes. Q. Was there any concern expressed by anyone at that meeting about using a book that conveyed intelligent design material? A. Yes. Q. What was that discussion? A. I believe it was Mrs. Spahr had documents that were evaluating whether or not you could present intelligent design in a science classroom. So there was some discussion of is it science, you know, is it appropriate to place in a biology -- or science classroom. Q. As you recall that discussion and the concerns that Mrs. Spahr expressed, how would you describe those concerns in your own words? What was the problem with teaching intelligent design in a biology class? A. It was -- intelligent design, you know, from the textbook says basically that life is, I guess, created by an intelligent designer. And we knew through my science classes and education classes in my undergraduate work that creationism was not allowed to be taught. And we just felt that it was too close to creationism to be comfortable in our classroom, to present it in our classroom. Q. As a biology teacher, were you comfortable with your students having Of Pandas and People as a companion textbook? A. No. I believe at that meeting sort of the end result was if we had to compromise, this book was coming as a reference text was our compromise instead of having it in the hand of every student. Q. Why did you accept that compromise? A. We felt like, again, we were, you know, all throughout this -- earlier we had agreed to say that we'd point out some areas of evolution that don't have as much evidence. That was our compromise first. And then this came, and we felt that it was being, you know, pushed, so we felt, well, if we compromise, maybe this will go away again. Q. Even with the compromise that you've just described where it's in the class as a reference book and not a companion text, did you have any sense from the curriculum committee about how you were to use Of Pandas and People? A. Not at that point. I think there were still questions of how we were to use it. Q. Was there any discussion at the meeting on August 30th about changing the biology curriculum? A. No. Q. Going forward to another meeting. Did you attend the October 18th meeting of the Dover School Board? A. Yes. Q. Did the school board, at that meeting, change the biology curriculum? A. Yes. Q. Turn to Tab 135. What is that document? A. Our biology curriculum. Q. And if you would, turn to -- sorry, Your Honor. The page numbers are Bates stamped on the bottom. 1646, can you find that? A. Yes. Q. Does the change that was approved by the board on October 18th appear on that page of 136? A. Yes. Q. Where does it appear? A. At the very bottom. Q. This page is set up with a number of columns that convey the amount of time, the content and concepts that are to be taught, the state standard. Right? A. Yes. Q. And let me ask you about the state standard. There is a reference to a state standard in that column? A. Yes. Q. If we were to look at the state standard, would we find any mention there of intelligent design? A. No. Q. The next column talks about instructional strategies. What instructional strategy was to be followed? A. Lecture. Q. And what resource is identified? A. Of Pandas and People. Q. Is there anyplace else in the biology curriculum, if we went through it page by page, where we would find a resource identified by specific title other than Of Pandas and People? A. Other than our textbook is listed. And we just generically said "textbook" because this is to stay throughout whatever textbook we use. Q. Was there any comment made by a board member named Heather Geesey at the October 18th meeting about teachers being fired? A. Yes. Q. What do you recall she said? A. My recollection is something was said, I believe it was by Mr. Brown, something about the addition of this being sued or something like that, do they have the right to sue us. And Mrs. Geesey said, well, if the teachers sue us, then they should be fired because they agreed with this. Q. Did you respond to that comment? A. Yes. Q. What did you do? A. When she said that, it caused me to jump out of my seat, and I ran to the podium and basically said the teachers did not agree with this addition of intelligent design into our curriculum. Q. At that meeting of the 18th, was there any discussion by the members of the board about why the curriculum change was being made? A. No. Q. Was there any discussion by any member of the board at any other time or any explanation provided about why the curriculum change was being made? A. No. The only thing we knew was their problem with evolution and the origin of life. Q. I've mentioned the board, but the school also has administration. Let me ask the same question. Was there ever any explanation given by the administration of the school district about why this curriculum change was being made? A. No. Q. Did anybody ever explain how it improved teaching science or biology in the school district? A. No. Q. Now, after the board meeting, a number of other things happened, and let me take you through a few additional exhibits. If you would turn to Exhibit Tab P692. A. Okay. Q. Have you seen a document, at least something containing this material, before? A. Yes. Q. What is it? A. It was a draft sent to us, you can see at the top, by Mrs. Spahr of -- basically it says what's going to be read to all biology classes. Q. Do you know who originated this draft? A. Mr. Baksa. Q. Were you asked to do anything with this draft? A. Yes. Q. What were you asked to do? A. Look it over, make changes, tell me what you think again. Q. All right. Who directed you to do that job? A. Mr. Baksa. Q. Turn now, if you would, to Plaintiffs' Exhibit 94, which is at Tab 94 in your book. You'll find it closer to the front. A. Okay. Q. Do you recognize this document? A. Yes. Q. What is it? A. This is my notes of changes that I was instructed to make. Q. What did you do with these changes? A. I sent them, I think via e-mail, to Mr. Baksa. Q. Turn, if you would, to Exhibit 98. A. Okay. Q. Is that the typed version of the handwritten changes we saw in the previous exhibit? A. Yes. This is what I actually sent to him. Q. All right. There's handwriting on this page. Do you recognize the handwriting? A. Yes. Q. Whose is it? A. Mine. Q. Some of the type on this page is in boldface. What does that signify? A. I bolded the areas that -- where I may have added words or changed things around. Q. Are -- well, let me ask you this question. What does your handwriting convey to the person looking at this document? A. I went over how many things, I guess, that I had changed and circled those. And then I compared, I guess, my version with the version that was eventually -- I don't want to say voted on, but the version that was eventually presented and put in where things were taken out or where they removed pieces of mine and that kind of thing. Q. There are some numbers and circles. A. Yes. Q. What do they signify? A. I believe those were the changes that I made, or the boldface is the changes that I sent. Q. Okay. And so when you say on this document they removed or they took out, that's what you were seeing as a comparison between your proposal and the ultimate version? A. Yes. Q. Okay. Let me ask you to turn to Tab 100 and just tell us what this is. Is that another review of -- A. Yes. Q. -- this draft? A. Yes. I believe this is almost a final copy, yes. Q. Now, one more on this. If you would turn forward on Plaintiffs' Exhibit 110. A. Okay. Q. The first page of that is a memorandum -- A. Yes. Q. -- from Mr. Baksa. You received a copy? A. Yes. Q. Dated December 7, 2004? A. Right. Q. And what is that forwarding and is that part of this exhibit? A. Telling us that before we get to the chapters on evolution, we are to read this statement here. Q. And is the document that appears behind this memorandum the final version of the statement that was to be read to students? A. Yes. Q. You've talked a little bit about your involvement in discussions with Mr. Bonsell, Mr. Buckingham, curriculum committee, where issues have come up about teaching evolution, issues have come up about how to use Pandas, and you described at least one or two compromises along the way. A. Yes. Q. Why did you work on the statement that was to be read to students? A. I was directed to by Mr. Baksa, who is my superior. And the original version I thought held -- well, was lacking in some of the, I guess, validity, or some of the statements were inaccurate, I thought. So if it was going to be presented to the students, that it should at least be accurate. Q. Okay. Turn, if you would, to Exhibit 104, which is behind Tab 104. A. Okay. Q. What is this? A. This is a press release. I think it was on the Web site, district Web site, about -- Q. What was the -- sorry. A. About the biology curriculum and what was to be read to the students. Q. What is the date of the first posting of this press release? A. 11/19/04. Q. I'd ask you to look down to the last paragraph before the final indented material at the bottom that starts, In coordination. A. Okay. Q. Do you see that? A. Yes. Q. Will you read that aloud into the record? A. (Reading:) In coordination with the science department teachers, the district solicitor, and the school board, Mr. Michael Baksa, the assistant superintendent in charge of curriculum, developed the following procedural statement that will be read to all students as the new biology curriculum is implemented beginning in January, 2005. Q. Is that an entirely accurate statement? A. We did not think -- we didn't like the "in coordination with the science department teachers" part. Q. Did you believe that was an inaccurate statement? A. Yes. Q. What did you do about it as science teachers? A. We wrote a letter to Dr. Nilsen, I believe, that stated that we weren't -- we think that the "in coordination with the science teachers" sort of misrepresented what factor we had to play in it. Q. Let me ask you to turn to Tab 106. A. Okay. Q. What is this document? A. That's the letter that we sent to Dr. Nilsen. Q. Would you read this, since it's only one paragraph long, into the record, please? A. Sure. (Reading:) Dear Richard Nilsen: Contained in the most recent press release regarding the biology curriculum, the following was stated: The assistant superintendent in charge of curriculum development, Mr. Baksa, in coordination with the science department teachers, the district solicitor, and the school board, has developed the following procedural statement to use in implementing the new biology curriculum language. The science department members strongly object to this statement. To reiterate what was verbally indicated to Mr. Baksa upon returning the draft of the procedural statement and in an effort to honor your request as not to be deemed insubordinate for input, the science department corrected the statement to ensure it was factually correct from a scientific standpoint. This was by no means giving our consent or agreement to the development of this statement. Since the science department had no input in this press release, we are asking a correction be released to the media. Q. Did you help prepare this document? A. Yes. Q. Is your signature on it? A. Yes. Q. Did you send it? A. Yes. Q. The statement that was to be read to students was something that, as originally prepared, was to be read by teachers. Is that correct? A. Yes. THE COURT: If you have a substantial amount more, Mr. Schmidt, we probably should take a break. If you think you can wrap it up in the next five or ten minutes, your direct -- and I don't want to hold you to that. MR. SCHMIDT: No, I'm willing to be held, Your Honor. I only have a few more questions. THE COURT: All right. Well, let's wrap that up, and then we'll break and have cross this afternoon. You may proceed. BY MR. SCHMIDT: Q. Ms. Miller, did you actually read that statement to your students in the ninth-grade biology class? A. No. Q. Did you refuse to read it? A. Yes. Q. I'd like you to turn to a document that's been marked Plaintiffs' Exhibit 121. A. Okay. Q. What is this document? A. This is a document sent to Dr. Nilsen where the science teachers were asking to be -- to basically opt out of reading that statement to the biology classes. Q. Did you have a hand in preparing this document? A. Yes. Q. Do you agree with it? A. Yes. Q. Look down at the second paragraph from the bottom before the boldface. Do you see that? A. Yes. Q. Would you read that paragraph into the record? A. The one that starts, Central to the teaching? Q. Yes, please. A. (Reading:) Central to the Teaching Act and our ethical obligation is the solemn responsibility to teach the truth. Section 235.10 guides our relationships with students and provides that the professional educator may not knowingly and intentionally misrepresent subject matter or curriculum. Q. And why, guided by that principle, did you refuse to read the statement to your students? A. By us reading the statement to our students, it essentially was -- it was going to be very contradictory to the students by saying, number one, that intelligent design is science, which we didn't believe it was, and that would be misrepresenting a subject matter. And, number two, if I'm telling the students that I'm going to teach evolution, which is very important and they're going to be tested on it, but yet ask them to go and read Of Pandas and People, which says that evolution didn't occur, to me that's confusing for the students. It's contradictory to do both. Okay? For them to be tested on evolution but yet say evolution didn't occur confused our students and would misrepresent how important evolutionary theory is to the students. MR. SCHMIDT: Nothing further on direct, Your Honor. THE COURT: All right. Thank you, Mr. Schmidt. We will now recess for lunch until -- why don't we say about five of 2:00. That will give us an hour and a half. And we'll take up the exhibits first thing for Professor Forrest when we return. And obviously we won't have the exhibits for this witness until we finish direct and cross. So we'll be in recess until 1:55 p.m. this afternoon. (A luncheon recess was taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 7 (October 6), PM Session, Part 1 THE COURT: Be seated, please. All right. Let's take, Liz, if you have them, we'll take the exhibits for Professor Forrest, and there are quite a few. We have P-348. I'll tell you what I'm going to do. I'm going to run through the whole list that I have, and then I'll see if there's any that you're not moving for the admission of and if there are any controversies with respect to these exhibits. P-348 is the witness's CV. 630 is the Trojan Horse publication, the book. P-347 is the report itself. P-349 is the supplemental expert report. P-418 is the Kenyon affidavit. P-12 are the FTE articles of incorporation. P-633 is the Why All the Fuss About Evolution and Creation article. P-566 is the FTE letter. P-344 is the case for creation -- a case for creation article. P-634 is the Bible Science newsletter. P-563 is the creation biology textbook. P-560 is the biology and creation textbook. P-1 is the biology and origins textbook. P-562 is the Pandas draft. P-652 is the Pandas and People copy sent by Mr. Buell. P-565 is the introduction to summary chapter. P-6 is Of Pandas and People. P-350 is the FTE letter to Barlett. P-360 is Challenging Darwin's Myth by Mark Hartwig. P-429 is Life in the Big Tent article. P-524, How the Evolution Debate Can't Be Won article. P-355 is an article. P-379 is the State of the Wedge article. P-516 is the Wedge article. P-410 is Darwin's Last Stand, an article. P-354 is the Check for ID article. P-473 is, Does Seattle Group Teach Controversy article. P-386 is the intelligent design article. P-390 is the intelligent design book. P-394 is the design revolution book. P 357 is the intelligent design article. I don't know if that's comprehensive. I hope it is. Tell me if it's not. MR. ROTHSCHILD: I think there were a couple exhibits already admitted. THE COURT: Yes, clearly several of them had been previously admitted. What is your pleasure with respect to that roster? MR. ROTHSCHILD: Your Honor, the Plaintiffs would seek to move in all of the exhibits into evidence, but I want to just be specific about the expert reports, because we only want to move them into evidence for a specific purpose and not -- I'm not suggesting a precedent that all expert reports come into evidence. With this particular expert, her qualifications, methodology had been challenged. That was the subject of the motion in limine and also argument in court. And for those purposes, her report, we believe, should be part of the record, and, in fact, I would suggest that all of the resources that she relied upon become part of the record for purposes of -- for that specific purpose. THE COURT: All right. Before we get to that, let's see if we can color from that list what has already been admitted. Pandas is P-6, I think, is that right? MR. ROTHSCHILD: The first edition of Pandas is P-6. That's the 1989 version. THE COURT: I believe that was admitted previously. MR. ROTHSCHILD: I think that's correct. THE COURT: Do you know of any others that were previously admitted? MR. ROTHSCHILD: I'm going from my list, which you may have not included some of the things you had recorded as admitted. P-11 is the second edition of Pandas. THE COURT: Yeah, I don't have P-11 on this list. MR. ROTHSCHILD: P-328, I don't think you said, but that's one that was admitted through Mr. Pennock. THE COURT: Did we admit P-6, Liz, previously? COURTROOM DEPUTY: I don't have that as admitted already. THE COURT: Then we didn't. Liz typically takes down and cross checks me with what we have not admitted, so I'm not so sure if P-11 was admitted. MR. ROTHSCHILD: We would like to move in P-6. THE COURT: 6 is the '89 version and, I think 11 is the later version. MR. ROTHSCHILD: Correct, Your Honor. THE COURT: All right. So let's then hear the Defendants -- if I understand, Mr. Rothschild, what you are requesting is that the expert report and the various publications, in fact, all the exhibits go in, but not to be considered by the Court in our determination other than the testimony that we heard here in court. They're there for the record. MR. ROTHSCHILD: Obviously, a lot of the documents that she did testify about today will be included in that group, but we're suggesting supplementing the exhibits with the ones she did not mention, but only for the purpose of -- THE COURT: Then I misunderstood you. You're suggesting that additional articles that were not referred to in her testimony-in-chief be included in the record? MR. ROTHSCHILD: That's correct. I don't want any question in the record about the thoroughness of her methodology, and we think that's important to make that record. And we have a list of those exhibits, and, you know, we can do that now or if you think that would be better to do it later. THE COURT: Insofar as -- let's take these first. So why don't we have Mr. Gillen and Mr. Thompson, do you want to speak to not the -- the non referred to articles but the referred to articles or any of the exhibits, in fact, because if I understand Mr. Rothschild, you're moving for the admission of all of the exhibits, including the expert report and the supplemental report. MR. ROTHSCHILD: For the limited purpose, yes. THE COURT: As identified and named. MR. THOMPSON: Your Honor, the only objection we have is the introduction of her expert report per se and the accompanying articles. I think it would really fly in the face of our position in the sense that we've challenged her report. We've challenged her methodology. The Court has before it the transcript of the challenge and will be able to review the challenge. Now what we're doing is giving her report more heightened value that that's being introduced in evidence. THE COURT: Well, and you're arguing that the report and the supplemental report shouldn't go in, and you're arguing against the ancillary materials that really don't have exhibit numbers against, contrary to what Mr. Rothschild is asking, you don't want those in either? MR. THOMPSON: Correct. THE COURT: But let's take out the report and the supplemental report and those ancillary exhibits which were not referred to during her testimony. What's your position on the remainder of the exhibits? MR. THOMPSON: We have no objection. THE COURT: All right. We'll admit all the exhibits at this point. And let's concentrate our dialogue on the report and the supplemental report. If I understand what Mr. Rothschild is asking, first of all, we don't have exhibit numbers for the other publications. That's something that we have to do in any event. And you can't move in what hasn't been identified. MR. ROTHSCHILD: They are on the exhibit list, but we would have to make you aware of them. THE COURT: Okay. So we have to note what the exhibit numbers are. If I understand what Mr. Rothschild is saying, he's not requesting that the report go in for the Court or the supplemental report for the Court's consideration but simply to appear in the record. I surmise that, that would be for the purpose of appellate review and not for the purpose of consideration by the Court. I can separate that out for my purposes. If you want to reserve argument on that, that's fine, because this is a little different, but I don't find it an out of bounds request, but I'll not rule if you want to think about that, and we can circle back and revisit it. MR. THOMPSON: I would appreciate it if we have some time to think about it under the circumstances that he's raised. THE COURT: All right. Why don't you put the xx own us then on is counsel. You can return to this topic because I don't think we have to decide this now, and maybe there's a way that you can have some kind of stipulation that you want to enter into the record, and you can do that orally, that sets ground rules, if, in fact, you're agreeable to enter in your report and the supplemental report and the ancillary non-referred to exhibits. I understand Mr. Rothschild's point. I also understand, Mr. Thompson, your point, that it is unorthodox inasmuch as the testimony was limited and didn't encompass the entire report, you do not want the entire report to go in. So if we can firewall, if you will, that, then I think there's probably a way to do that. But you're capable fellas, and maybe you can work out a way to do it. Mr. Gillen is smiling. He likes that perception. MR. GILLEN: I'll take any compliment, Your Honor. THE COURT: Anything you can get. Any other exhibits? I have none on cross. MR. THOMPSON: We do not have any exhibits on cross, Your Honor. THE COURT: All right. Does that encompass, other than those disputed areas which we'll circle back to later in the proceedings, Mr. Rothschild, that's everything? MR. ROTHSCHILD: Yes. THE COURT: All right. Then I think we're prepared to have cross examination of this witness. MR. ROTHSCHILD: One more point, Your Honor. As with Mr. Miller, Dr. Miller, if we could submit to aid in your reading the transcript of demonstratives used with Dr. Forrest, not as exhibits in evidence, but as an aid to your consideration of the issues. THE COURT: The demonstratives were principally the timeline and the intersecting graphs as to the -- why don't you want to reduce them and give them numbers? MR. ROTHSCHILD: I don't mind doing that at all, Your Honor. I'll do that. THE COURT: I'm thinking, for your own purposes, maybe that makes sense. I didn't think of them, but I would certainly like -- I didn't think of them as exhibits. But I'd like to have them. Inasmuch as you're going to submit them, why don't you assign them exhibit numbers, and when we circle back on this other issue, let's deal with that. MR. ROTHSCHILD: The other demonstrative was the comparison charts between creation and science and intelligent design, the six topics. THE COURT: Do you want to say something? MR. THOMPSON: We have no objection to that. However, we do have an objection to the graph which listed the various Supreme Court cases. That's the graph you were talking about? MR. ROTHSCHILD: We did not use that. THE COURT: I'll probably be reading them anyway, if I haven't already. All right. Let's proceed with cross examination. (Whereupn, Jennifer Miller, having been previously duly sworn, testified as follows:) CROSS EXAMINATION BY MR. GILLEN: Q. Good afternoon, Mrs. Miller. A. Good afternoon. Q. Pat Gillen, attorney for the Defendants. I took your deposition. I'm going to ask you a few questions today about your direct testimony. You testified that you've been a biology teacher at Dover since 1993, correct? A. Yes. Q. And prior to 2003, the issues that have brought us here today, the biology text, the biology curriculum were not on the radar for you as a teacher at Dover, correct? A. Correct. Q. But you have testified about a meeting you had with Bert Spahr, head of the department, in the spring of 2003; correct? A. Yes. Q. And there was mention of a memo that was generated in connection with Mrs. Spahr's discussions with Dr. Peterman, correct? A. Right. Q. I'd like to ask you to look at that. Again, if you would, and Plaintiffs' counsel has kindly agreed to put it up on the screen for ease. For the record, Mrs. Miller, this is Defendant's Exhibit 1. It's also a Plaintiffs' Exhibit 26. And they've kindly agreed to project it for ease of reference, if that helps you. I want to ask you a few questions about that. You remember Bert Spahr telling you she had a discussion with Mike Baksa, and she took it to Dr. Peterman, correct? A. Yes. Q. And if you look at that memo, Exhibit 1, you'll see that there's a reference to the instructions that Dr. Peterman passed on in the memo. Would you read, if you would, the first paragraph into the record, please? MR. SCHMIDT: Your Honor, I'm not sure whether there is an objection or request for clarification. Mrs. Miller did not testify about this memo, and it hasn't been established that she ever received this memo at any time contemporaneously with its having been published. I think that should be established as the foundation. THE COURT: That sounds like a foundation objection. All right. I'll sustain it on that basis. Why don't you try to establish a foundation prior to questioning her further? MR. GILLEN: Okay. BY MR. GILLEN: Q. I do remember -- let me ask you this, Mrs. Miller. You testified that Bert Spahr came back to you with instructions on how to continue teaching evolutionary theory in your class, correct? A. After this conversation? Q. Yes. A. We had a conversation. I think it was again at a department meeting that this topic came up and that we were to be on guard, but continue teaching as is, yes. Q. And Bert Spahr told you to essentially continue teaching evolution as you taught it, correct? A. Correct. Q. Now I want to ask you, did she continue to -- did she tell you to continue teaching creationism in the classroom? A. No. Q. But you mentioned creationism, correct? A. No, not specifically, no. Q. Is it your testimony that you had no discussion with Bert Spahr about teaching creationism in connection with your presentation of evolutionary theory? A. Yeah, I -- I know that somewhere in here, it says -- I remember reading -- let me see if I can find it. She explained to Mr. Baksa that all biology teachers state that another theory of evolution is creationism, but creationism per se is not taught since it's not addressed by the standards. So when I saw this memo for the first time, I had some misgivings about that, because I disagree that we state that another theory of evolution is creationism, but I do agree that creationism is not taught. Q. And that was the point of my questions. Getting again to what you discussed in connection with evolutionary theory, I just want to make sure that I'm clear on the way you present the subject matter. I think you said this morning that you tell the students you don't care what they believe about how life begins, is that correct? A. Yes. Q. And you don't get into the origins of life question, correct? A. Correct. Q. And you said that you don't get into sort of the microbiological part of that process, the cells and development of cells, is that correct? A. Correct. Q. And you said that you focused on change within species or change in species, correct? A. Yes. Q. You used the example of diversification of finches, correct? A. Correct. Q. And you don't focus on change between species, it's more how one finch becomes another if isolated in the Galapagos Islands, correct? A. Correct. Q. And that's always been your teaching practice, correct? A. Yes. Q. And it is today, is that correct? A. Yes. Q. In addition, you don't focus on what we might consider the cosmological dimension of the question of origin of life, the conditions in the universe that are conducive to life, is that correct? A. Correct. Q. You don't recall any specific instruction from Dr. Peterman to you about how to teach evolutionary theory, is that correct? A. Correct. Q. And you remember Bert Spahr telling you essentially to continue teaching as you were? A. Yes. Q. Now you've testified you remember a meeting with Alan Bonsell in the fall of 2003? A. Yes. Q. And there was a discussion of how teachers addressed origins of life? A. Correct. Q. You explained that you did not address the origins of life, correct? A. Correct. Q. And the other teachers in the department agreed? A. Yes. Q. It was a cordial meeting? A. Yes. Q. And you left on good terms feeling he was satisfied? A. Yes. Q. Creationism was not mentioned during that meeting? A. Correct. Q. And you can't remember any discussions of changes to the biology text or biology curriculum between that meeting and the end of 2003? A. Correct. Q. You do remember though that Bert Spahr remained somewhat concerned, is that correct? A. Yeah, I would say so. Yes. Q. And just to elaborate and be fair, I mean, she had non-tenure teachers, and she was concerned about what this issue might mean for them, correct? A. Correct. Q. You also testified that there was a board curriculum meeting in the spring and summer of 2004? A. Yes. Q. And I don't know if you remember this, but one of the books discussed was the family and consumer science textbook? A. Correct. Q. You remember Sheila Harkins pointed out to the teacher in that area that there was really a very slight difference between the old book and the new book? A. Yes. Q. Mr. Schmidt showed you this morning the curriculum that was -- the curriculum as changed on October 18th, 2004. I wanted to ask you one question. At the top of that column that Mr. Schmidt showed you today, there was a reference to times, weeks, classes. It's the first column to the extreme left of the curriculum chart. And it says there are 19 days. But you don't spend 19 days presenting evolutionary theory, correct? A. No, not typically. Q. Right. This 19 days was put there when you developed this curriculum, correct? You put that there? A. Yes, uh-huh. Q. But it wasn't changed to reflect your change in practice more recently, including your practice with the 2004 text, correct? A. Recently, it has. I have submitted a new one, yes. Q. Okay. So -- and that's what you described today, you got a revised curriculum that's now in front of the board, correct? A. I'm assuming. We gave it to Mr. Baksa, so I don't know happens to it after that. Q. And for the record, to be clear on this point, the purpose of those revisions is to bring Dover's biology curriculum, its curriculum guide into closer alignment with the changed state standards, correct? A. No, it was just strictly for time, to more -- when we put that 19 days in, it was -- we had taken -- at one point, there was a science project basically that all 9th graders had to do. We took that out and we started to rearrange things and probably just sort of dumped days here and there. So a lot of them ended up in evolution. So that's why that states 19 days, because of taking that out. So we have recently, I believe at the beginning of this year, just resubmitted one that more accurately reflects the number of days spent on topics. Q. And that's one or two days, correct? A. I think it says five, maybe now. Q. Okay. And that's been drafted between your depositions -- between the spring of 2005 and this day today? A. Correct. Q. Okay. Good enough. You testified about a meeting that was held with the board curriculum committee on June 2004? A. Yes. Q. And there was discussion of this mural that's been referenced here during that meeting, correct? A. Yes. Q. And you remember Bill Buckingham saying, how can you say you don't teach origins of life if that mural is in the classroom, correct? A. Correct. Q. I think you said there was a heated exchange between Bert Spahr, Mrs. Spahr, and Bill on that issue? A. Yes. Q. Nonetheless, they parted shaking hands, correct? A. Yes. Q. And this was consistent with your sense that the meeting had been productive and that you had explained your position to the board curriculum committee, correct? A. Correct. Q. Now there were other meetings in the spring of 2004, correct? A. I remember the one that you just said about with Mrs. Harkins and the family consumer science books. Q. Okay. So that would make two? A. Right. Q. Okay. Good enough. And, you know, insofar as it relates to the biology curriculum, over the course of these meetings, there was kind of a compromise that began to be worked out with the teachers, is that correct? A. Correct. Q. And the teachers said that they'd be willing to point out that Darwin's theory is not necessarily a fact? A. Yes. Q. That there were parts of Darwin's theory that don't have as much evidence as others? A. Correct. Q. Essentially, that you would make students aware that there were gaps and problems, correct? A. Which is something that we've always done, yes. Q. Exactly. Thank you. And by way of compromise, you suggested maybe putting what you had always done in the curriculum, is that correct? A. Correct. Well, I don't know if we suggested it, but it was -- I don't know who drafted the language, gaps and problems, but somehow that came out of those, yes. Q. Okay. MR. GILLEN: Well, may I approach the witness, Your Honor? THE COURT: You may. BY MR. GILLEN: Q. Mrs. Miller, if you would, I'd ask you to turn to page 56 of your deposition, line 4. A. Okay. Q. I just want to make sure the record is clear on this point. If you look at 55, 24, page 55, line 24, through 56, 3, my question to you is simply, during these curriculum meetings, was a compromise worked out where what the teachers did would be put in the curriculum? A. I believe so, yes. Q. Now at the end of that June meeting, you were assured that the department would get the text that had been recommended by the department, correct? A. Yes. Q. And that was the Miller and Levine text, 2002 edition? A. Correct. Q. Now talking about the way in which the text jived with the state standards, the 1998 -- when the state standards were recalibrated, the 1998 edition of Miller and Levine didn't jive so well with the state standards, correct? A. Correct. Q. Because there had been a shifting of some topics between different subjects by the state standards, correct? A. I don't think by the state standards necessarily. We didn't have published state standards necessarily before that. So I don't know if, you know, we can compare it to something old to say there was a shift. Q. I take your point. What happened is, the state standards came out and they allocated different topics to different subject matters, and it was inconsistent with your prior practice, correct? A. I'm not sure of what you mean by saying different topics, how it subjected it to different topics. Q. Sure. A. We saw where there was an emphasis, so that we made sure that our curriculum reflected what was in the state standards. Q. Well, let me ask you this. Topics that had previously been considered in connection with the biology course were now shifted to other areas, correct? A. No, I don't say they were shifted to other -- like, for example, DNA wasn't shifted to chemistry or anything like that. I mean, that didn't happen. Q. Okay. How about environmental science? Wasn't there some reallocation of topics between biology and environmental science? A. There was a separate set of standards on environmental science where, before we had talked about that in biology. Q. Okay. Good enough. So there was a movement of some topics from biology to environmental science under the state standards, correct? A. Yeah, there was a separate set of environmental and ecology standards. Q. And part of your justification for the 2002 edition, its purchase, was that, that edition of the text, as you saw it, jived more perfectly with the state standards, correct? A. Correct. Q. Now during the time of these meetings with the board curriculum committee, you recall receiving some DVD's and videotapes for review? A. One DVD, yes, or a video. I don't remember if it was DVD or video. Q. Do you recall that there were a couple of them, two DVD's and one video? A. The only one I remember is Icons of Evolution. Q. That's the one you watched, correct? A. Yes. Q. You remember that Bill Buckingham provided that tape for your review? A. Mr. Baksa gave it to us, so I'm not sure where he got it, but Mr. Baksa gave to us. Q. But you undestood it had come ultimately from Mr. Buckingham? A. From a board member, yes. Q. Did you think it was someone other than Mr. Buckingham? A. I don't remember if we were told at that point who it came from. Q. If you'd look at page 56, line 17? A. Say the page again, please. Q. Certainly. Page 56, line 17. A. Okay. Q. At that time at least, you answered, I am remembering Buckingham that got the tape and gave it to us. A. Okay. Q. As you sit here today, you have no reason to remember otherwise, do you? A. No. Q. Okay. You remember that, as you recall it, Bill Buckingham focused on an area, a topic, origins of life that you weren't actually teaching? A. What do you mean, he focused on? In a meeting or -- Q. It was your understanding he was focused on a topic that you weren't actually teaching, correct? A. As far as his concerns with the textbook? Q. Yeah. A. He had some concerns, like I said, that were only the teacher edition and some concerns with man's evolution, which, yes, we didn't teach. Q. Now you've also today had some product information about a text that's put out by Bob Jones University text? A. Yes. Q. And but you don't remember any discussion of that text at the board curriculum meetings, do you? A. No. I remember it being handed out. And I think it was Mr. Baksa saying that this was obviously one we couldn't use. Q. And when he said that, it was because with reference to its religious content, correct? A. Correct. Q. I think you also testified today there were two charts that Mr. Schmidt showed you, but you don't remember discussion of those either, right? A. No. Q. You attended a board meeting, a board curriculum committee meeting on or about June 14th, 2005, correct? A. Correct. Q. And you remember Alan Bonsell mentioning intelligent design? A. I think that was in my notes from that board meeting, correct. Q. Remember Alan Bonsell saying that the paper should stick to reporting facts? A. I think so, yes. Q. And that he had a sense that, because the papers weren't reporting facts, there was distrust between families, parents, students; correct? A. That's what I had in my notes, yes. Q. You don't remember anything else that Alan Bonsell said at that June 14th, 2004, board meeting, correct? A. I remember looking at my notes that, as you said, I had intelligent design theory with a question mark. So I don't know if that was the first time it was brought up or -- looking at it now, I don't remember why I had that question. Q. Mr. Schmidt asked you this morning about a survey of textbooks that had been done by Mr. Baksa? A. Yes. Q. Prior to you selecting the Miller and Levine text, you had reviewed a number of texts that had been sent by vendors, correct? A. Correct. Q. Mr. Baksa knew you had already reviewed some text in order to make your selection of Miller and Levine, correct? A. I'm assuming, yes. Q. Turning back again, and forgive me for shifting gears, to the June 14th, 2004, board meeting. You don't remember anything that Sheila Harkins said at that meeting, correct? A. Nothing in particular, no. Q. Or anything that Angie Yingling said? A. No. Q. Or anything that Jane Cleaver said? A. No. Q. Or anything that Noel Weinrich said, correct? A. No. I remember notes saying, I don't know if it was this meeting or not, somewhere that Noel said something about all teach of a creation. I'd have to look at my notes to know if it was at that meeting or not. Q. Now at the June meeting of the board curriculum committee, you had been assured that you would get your text, which at that time was the 2002 edition of Miller and Levine, correct? A. Correct. Q. But in July, you learned that there was a new and more recent edition of the Miller and Levine text, the 2004 edition, correct? A. Correct. Q. And as you testified this morning, you came into the office and inspected it for changes as it related to the presentation of evolutionary theory? A. Correct. Q. At that time, you thought that the changes addressed Bill Buckingham's concerns, correct? A. Correct. Q. One change pointed out that there were gaps in the evidence, correct? A. I'd have to see the paper to know for sure, but -- Q. Well, if you look at your deposition, page 74. And you'll see on page 73, I asked you a question. Let me ask you, in terms of concern that had been expressed about presenting theorist fact, did you see changes presenting the manner of presentation of evolutionary theory? And you answered, yes. And even a lot of Mr. Buckingham's concerns that he had given us originally was some of the reference to man's evolution were taken out. You know, the wording was less controversial. A. Okay. Q. Is that your answer today as you sit here? A. Sure. Q. Now it was around that time that Mike Baksa gave you the text Of Pandas and asked you to review it and give your opinion on the book? A. Yes. Q. Now I know that prior to 2004, you were using the 1998 edition of Miller and Levine, correct? A. Correct. Q. And then you -- the department selected the 2002 edition of Miller and Levine? A. Correct. Q. It was the same book, new edition? A. Correct. Q. But you had never used Of Pandas before, correct? A. Correct. Q. There was the subsequent meeting of the board curriculum committee in late August of 2004? A. Yes. Q. And the topic of that meeting was generally Of Pandas, correct? A. Correct. Q. I think you said, Bill Buckingham, Sheila Harkins and Casey Brown were there? A. Yes. Q. Alan Bonsell was there? A. Yes. Q. Rich Nilsen and Mike Baksa? A. Yes. Q. Bert Spahr and yourself? A. Yes. And I believe I said Rob Eshbach was, too. Q. You think so? A. I think so. Q. Good enough. You brought certain reservations about the text to the attention of the board, correct? A. Correct. Q. One was the readability, which you talked about today? A. Yes. Q. Also had some reservations about the science? A. Yes. Q. You remember Bert providing information to the effect that she thought indicated the teaching of intelligent design was illegal? A. She had papers with her. I don't know if they were her thoughts, but there were papers that she had gotten from the Internet, correct. Q. And she communicated that information to the board? A. Correct. Q. She also expressed concern again for untenured teachers? A. Yes. Q. There was a back and forth between Mrs. Spahr and the board members about that issue, correct? A. I think so, yes. Q. And the nature of it was essentially this, the board was saying, you're telling us it's illegal, and we're hearing that we can present this legally, correct? A. Yes. Q. At that time, you got the sense that Alan Bonsell was viewing intelligent design and creationism as two different things, correct? A. I would say so, yes. Q. And in connection with these meetings, Dr. Nilsen distributed an opinion from the district solicitor, Stock and Leader? A. Yes. Q. To the effect that intelligent design could be presented legally, correct? A. Re-reading that, I'm not -- it was a lot of legal jargon, so I'm not exactly sure what that memo said, but, yeah, it was handed out, and I was very confused to what it said even to this day. Q. Sure. I wouldn't hold you to any legal conclusion. But you remember the opinion being passed out to the persons present at the meeting, correct? A. Yes, I do remember that opinion being passed out, yes. Q. With reference to Mr. Bonsell's belief that intelligent design could be presented legally in a biology classroom, you had the impression that Bill Buckingham shared that view, correct? A. Yes. Q. Casey Brown, on the other hand, seemed concerned that there was a gray area there concerning whether intelligent design might be considered creationism, correct? A. Yes. Q. Now there was also discussion of whether and how the text Of Pandas could be used in connection with classroom instruction, correct? A. Correct. Q. And you know, at one point, Dr. Nilsen suggested perhaps using it as a reference text, correct? A. Correct. Q. Now the science faculty wasn't keen on that, but they thought it might be a workable compromise, correct? A. Correct. If we had to have the books, at least having them as a reference and not handed out to each student would be more acceptable. Q. And that discussion was kind of like, well, along these lines, we could either assign it to the students, we could have it as a reference in the classroom, we could have a reference set for each student, correct? A. Yes, I believe so. Q. And Bill Buckingham at that meeting expressed his view that each student should be assigned a copy of Of Pandas, correct? A. Correct. Q. He then left early for a doctor's appointment? A. Yes. Q. At that point, Alan Bonsell said that not every member of the board is in agreement with Mr. Buckingham considering whether assigning the text would be the best use of Of Pandas, correct? A. Correct. Q. He said maybe it would better be used as a reference text, correct? A. I believe -- yes. Uh-huh. Q. And again, you left this meeting, as you had prior meetings, thinking that it was generally positive and that some progress had been made, correct? A. Sure. Q. You attended a second board meeting in September 2004 -- won't hold you to the dates, but I can tell you that it was September 14th, 2004, correct? A. Sure, I'll go with your numbers. Q. And let's take the date out of it so the record is clear. You do remember going to -- A. I have notes from it, yes. Q. -- a board meeting. Okay. Barrie Callahan was there? A. I'd have to look at my notes. Q. That's all right. Well, we did look at your notes at your deposition. If you want to look at your deposition, page 86, line 24? A. Okay. Q. And just look page 86 over, Jen -- excuse me, Mrs. Miller. A. Okay. Q. Looking at that now, do you recall that Mrs. Callahan was present at the meeting? A. Yes, I have some notations that she spoke. Q. She was asking questions about Of Pandas, correct? A. Yes. Q. And Larry Snook was there making comments about the cost of the book? A. Yes. Q. Larry Snook was a former board member? A. Yes. Q. Ultimately, no public funds were used for the purchase of the book, correct? A. Correct. Q. In fact, later you learned that Of Pandas had been donated to the district? A. Correct. Q. After that, Mike Baksa presented a proposed curriculum change from the board curriculum committee to the science faculty, correct? A. Yes. Q. On or about short meeting held on October 8th, 2004? A. Correct. Q. The draft provided that students would be made aware of gaps and problems in Darwin's theory, correct? A. By the board curriculum committee? Q. The board curriculum committee proposed change that Mike passed onto you on October 8th, 2004? The draft included language to the effect that students would be made aware of gaps and problems in Darwin's theory, correct? A. It also included the words intelligent design. Q. We'll get there, Mrs. Miller. Just answer my question. That's a yes? A. That was in there, yes. Q. And you were okay with the part about gaps and problems because that was consistent with what had been discussed? A. Right, that was our compromise from before, yes. Q. Understood. Understood. Then the draft also provided that students would be made aware of other theories of evolution, correct? A. Yes. Q. And again, you were okay with that because that had been discussed previously? A. Correct. Q. But the draft also referenced making students aware of intelligent design, correct? A. Correct. Q. And it listed Of Pandas as a reference text? A. Correct. Q. And you were not okay with that, correct? A. Right. Q. For the reasons you explained this morning? A. Yes. Q. Okay. Good enough. And you were upset because you thought this matter had been addressed in the August meeting, correct? A. Correct. Q. And likewise, Mrs. Spahr, Bert Spahr, the head of the science department, was also upset and angry for the same reasons, correct? A. Correct. Q. You were okay with the use of Of Pandas as a reference text. That had been talked about in August of 2004? A. Yes. If we had to compromise, we would be willing to do it, yes. Q. Sure. Sure. And -- but you were not comfortable with the idea that teachers would be required to teach intelligent design, correct? A. Correct. Q. And the placement of the term intelligent design in the curriculum, along, as you saw in that draft, led you to question whether or not you'd be required to teach intelligent design, correct? A. Correct. Q. When Mike gave you the draft, he asked you for feedback, correct? A. Yes. Q. And -- A. Now that's the draft of what was read, correct, or this draft? Q. The draft of the curriculum, he asked you for feedback on that? A. Yes. Q. The thrust of the feedback provided by the department was to take out the reference to intelligent design and the reference to the text Of Pandas in the curriculum, correct? A. Correct. Q. Later, you learned that the board curriculum committee didn't accept those changes suggested by the science faculty, correct? A. Correct. Q. During the period after Mike had passed this draft curriculum change on to you, Rich Nilsen came to you and spoke with you about the matter? A. Yes. Q. He indicated that Alan Bonsell was thinking maybe to put a note, attend -- append a note to the curriculum indicating that origins of life are not taught? A. Correct. Q. You remember Dr. Nilsen telling you that Alan Bonsell thought this would address your concerns? A. Yes. Q. Dr. Nilsen at that time also explained that he thought that, if the students were going to be able to take the text Of Pandas home, it should be listed as a reference, correct? A. Yes. Q. You expressed concerns again about being required to teach intelligent design theory, correct? A. Correct. Q. You also expressed concern about the district being a test case concerning the legality of teaching intelligent design? A. Yes. Q. You were concerned about personal liability, not just the liability of the district, correct? A. Correct. Q. I think the next major thing that Mr. Schmidt asked you about was the board meeting on October 18th, 2005. You remember that Bert Spahr addressed the board at that meeting? A. Yes. Q. In connection with her statement, she equated intelligent design with creationism? A. I don't remember word-for-word her statement, but -- Q. No, nor would I ask you. But you remember, she said that teaching intelligent design was unlawful, she thought, correct? A. I think -- again, that there was too much similarity there, that we were uncomfortable with that. So if creationism is illegal to teach, therefore, since intelligent design was close enough to be uncomfortable, we were unsure of where that left us. Q. Right. So there had been no cases on teaching intelligent design? A. Correct. Q. But it was her view that it was nonetheless illegal, correct? A. I guess that was the -- yeah, that's what's being tested here, so -- Q. And that was the thrust of her comments that night to the board, correct? A. I would say so, yeah. Q. And she had a concern for untenured teachers, correct? A. Correct. Q. Now there were three versions of the curriculum that were before the board that night, correct? A. Yes. Q. One was labeled Roman 11-A, correct? A. Yes. Q. And I'm not sure these will be helpful, but that's listed over there as Defendants' Exhibit 60. And then there was one that was listed Roman 11-B, correct? A. Yes. Q. And then on the night of the meeting, you received another version, which was Roman 11-C? A. Right. Q. And for the record, Roman 11-A is Defendants' Exhibit 60. Roman 11-B is Defendants' Exhibit 61. And Roman 11-C is, I believe, Defendants' Exhibit 68. I'll check that later. Now I want to ask you a few questions about Roman 11-C. As you sit there on the stand, Mrs. Miller, can you see that? A. I can't read what's in black. Q. You know what. And that's unfortunate. If you look in your book at Exhibit 68, I believe you'll find it. Thank you, Mr. Schmidt. For ease, it's being projected by Plaintiffs' counsel, for which I'm grateful. If you look at that, Mrs. Miller, do you remember that document? A. Yes. Q. And that was the document that Dr. Nilsen presented to the science faculty on the night of the October 18th, 2004, board meeting? A. I believe so, yes. Q. And if you look in the lower left-hand corner, you'll see that it has a note which provides that origins of life is not taught, correct? A. Correct. Q. If you look at the language of the bottom of the column entitled unit content, concepts process? A. Yes. Q. It's difficult to see in any event. But you'll note that on your printed copy, it provides that the students will be made aware of other theories, correct? A. Correct. Q. It omits the reference to intelligent design, correct? A. Correct. Q. Then the final difference that is blocked out and significant in terms of our discussion today is that, if you look at the materials resource column on the right-hand side, it retains the reference to the text Of Pandas, correct? A. Correct. Q. You remember that Dr. Nilsen or -- no, actually it was Mr. Baksa, I believe, who passed this onto the science faculty on the night of the meeting? A. I believe so, yes. Q. You remember that Rich Nilsen had spoken with you about appending the note which provided that origins of life was not taught? A. Yes. Q. Now throughout these discussions in the spring and summer of 2004, the position of the faculty had always been that you didn't teach origins of life, correct? A. Correct. Q. So when this came up, you can't recall exactly what you said, but in your deposition you testified, probably to the effect of, the note is no big deal, we don't teach it anyway, correct? A. Correct. But there was some questions we had, if that limited us to certain things that could or could not be said in the classroom. Even though we had already done it, putting that in the curriculum, did that limit topics that could be discussed. Q. Sure. I understand that. And we'll ask you a few questions about that. But for present purposes, the note, origins of life will not be taught, reflected the teaching practice of the science faculty, correct? A. Sure. Q. Okay. You remember that when Dr. Nilsen had made you aware that Mr. Bonsell was considering placing the note, he thought it was a good idea, that it would alleviate some of the faculty's concerns? A. Yes, he said that. I wasn't exactly sure what that meant, but, yes. Q. And you remember likewise that Dr. Nilsen had talked to you again, as he had throughout the summer, about using Of Pandas as a reference text, correct? A. At the meeting that I had with him? Q. Yes. A. Yes. He explained that, if the students are taking it home, then it has to be listed so that we're covered if a parent asks a question about it, that it's in the curriculum. Q. Okay. Now we know that there were a whole bunch of parliamentary maneuvers on the night of meeting, correct? A. Yes. Q. And that the final curriculum change, which is at issue in this litigation, was produced as a result of that process, correct? A. Correct. Q. And if you look here at this demonstrative, which is, or actually, the curriculum change that Mr. Schmidt showed you earlier today, what I want you to do is, just look at Roman 11-C and ask you this. The principal difference is that Roman 11-C was changed to include the reference to intelligent design, isn't that correct? A. What was passed, you mean? Q. Yes. A. Yes. Q. In the final version? A. Yes. Q. And the science faculty was disappointed with that outcome, correct? A. Correct. Q. You felt that you had tried to compromise, and still they had put intelligent design in the curriculum, is that correct? A. Correct. Q. Apart from that though, you had agreed to make the students aware of gaps and problems, correct? A. Correct. Q. Make them aware of other theories? In fact that was in the text, correct? A. Right, it talks about Lamarck as a pre-cursor to Darwin's theory of evolution. Q. Sure. And you had agreed to make use of -- or to the use Of Pandas as a reference, correct? A. I guess. Again, if it had to be there, I don't know if we agreed to it, but if it had to be there, then at least, as just sitting on a shelf in a classroom was better than handing it out to each student. Q. Sure. Now you've also testified about a comment that Heather Geesey made at the meeting to the effect of someone being fired? A. Yes. Q. And I take it from your testimony this morning that you were under the impression it was a comment directed to the teachers, correct? A. Correct. She said, the teachers will be fired. Q. That's what you say she said? A. Yes, that's what I remember she said because -- Q. She denied it. A. I understand that, but I jumped up to the podium. So if she said someone else, I don't know why I would have stepped up unless she said it about me. Q. Nor would I deprive you about your understanding, but she has denied that, correct? A. Correct. Q. And the next day, she circulated a note saying, that's not what I meant? A. Correct. Q. Are you aware that Mrs. Geesey requested a transcript of the tape in the aftermath of the allegations that she threatened the teachers with firing? A. No. Q. Do you have any idea why she requested a transcript if she was trying to cover it up? THE COURT: Hang on a minute. MR. SCHMIDT: The question was, did she know something, and the answer was, no, and then the follow-up question asked for more information about what she's testified she didn't know. So lack of foundation. MR. GILLEN: I'll withdraw the question, Your Honor. THE COURT: All right. BY MR. GILLEN: Q. The next development in the story, from your standpoint, Mrs. Miller, if I'm correct, is the development of the statement, correct? A. Correct. Q. In that, after the board meeting, you had told Mr. Baksa that you wanted specific direction if intelligent design was mentioned in the curriculum, what the teachers were to say, what exactly word-for-word the teachers were to say, correct? A. Correct. Q. And subsequently, Mike Baksa produced a draft statement which he passed on to you for your review, correct? A. Yes. Q. You've testified today that you reviewed that statement for its accuracy, scientific accuracy, correct? A. Correct. Q. You added the definition of theory to the statement? A. Yes. Q. You took the use of the term theory away from intelligent design, correct? A. Correct. Q. And that's because you viewed intelligent design as addressing the origin of life not evolution, correct? A. It also said that it was something -- the original said something like, I don't know, be made aware of other theories of evolution, including intelligent design. And, to me, if intelligent design is saying evolution did not occur, then it can't be a theory of evolution. Q. Is it your understanding, Mrs. Miller, that intelligent design says that no evolution occurs? A. If it says that -- if it says that it was created by some intelligent being, then things couldn't have evolved. Q. Let me just ask you the question again, and I would never take away your answer. Just answer yes or no, if you would. Is it your understanding that intelligent design holds that no evolution takes place? A. See, I have conflicting views here. According to -- at that point, what I -- I have two -- when I read Of Pandas and People, then I would say the answer to that is, yes. Listening and hearing to some of what Dr. Behe said since then, he does agree with parts of the theory of evolution. So I think there's two -- to me, there's two conflicting things there. Q. Is it your understanding that the text Of Pandas denies that any evolution takes place? A. I'd have to look at parts of it to know exactly. But again, as far as origins of life are concerned, yes. Q. You've only read parts of it, correct? A. I read the first six chapters, yes. Q. You objected to the press release that was issued by the district in November 19th, 2004, correct? A. Correct. Q. And I want to make sure that I understand your testimony correctly. You thought it created the impression that the science faculty had been involved in the curriculum change, more specifically, the inclusion of intelligent design, correct? A. Correct, and that we agreed with it. Q. And that was your view of what the press release conveyed? A. Yes. Q. And that was the basis for your objection? A. Yes. Q. There was a board meeting on November 9th, 2004, correct -- well, let's say, there was two board meetings in November. The second one, you attended it, correct? A. What -- I don't know. What date was it? Q. Sure, sure. I understand. It's hard to remember. I just want to get a few points. If you turn to your deposition, page 143, line 12. A. Okay. This says, a November 1st board meeting? Q. You're right. You attended that meeting, correct? A. It looks like it, because I have notes from that meeting. Q. Sure. And you recall Alan Bonsell more or less asking for more civility at the meetings? A. I'm looking to see, since I don't remember. Q. If you look at 144, it may be of assistance; 144, beginning at line 9. A. Yes, now I see that. I said that he was not happy with the last board meeting. Q. Barrie Callahan was there also? A. Since I can't be sure, I won't -- Q. Okay. And I don't mean to test your memory actually. I just want to get a few points that you recalled and, therefore, can testify to. If you look at 145, line 17, Jen? A. Right, there it is. Q. I'm sorry, Mrs. Miller. A. Yes, I see that. Q. Okay. And at that meeting, she gave her opinion that the curriculum change was contradictory, correct? A. Correct. Q. And she thought that was so because the note provided that origins of life was not to be taught, correct? A. Correct. Q. And the subtitle Of Pandas indicates it deals with the question of biological origins, correct? A. Correct. Q. Casey Brown was also present at that meeting? A. I believe so. I remember reading that. Q. She said the students were being ridiculed as a result of the curriculum change? A. Yes. Q. She told the board that they should do onto others as you would have them do onto you, correct? A. I believe so. Q. It was your understanding she was saying that the board should, you know, the board members and members of the community should have a civil exchange, correct? A. Correct. Q. There was a later meeting of the science faculty with the administration in November, around November 24th, 2004? A. Yes. Q. There was some discussion of the statements the science faculty had released in response to the press release issued by the board, correct? A. Correct. Q. At that meeting, Dr. Nilsen said that the purpose of the press release was to protect the teachers, correct? A. Correct. Q. Do you recall Mr. Bonsell saying that he was surprised with the reactions of the teachers, he thought that they had been cooperating throughout, correct? A. Now I'm remembering that's two different meetings. We had one meeting just with Dr. Nilsen and Mr. Baksa, and we had one meeting later with Mr. Bonsell. Q. For the purpose of my question, let's look forward to the one with Mr. Bonsell. Do you recall Mr. Bonsell saying that? A. Say it again, please. Q. Saying he was surprised at the reaction of the teachers to the press release because he thought they were on board? A. Yes. Q. And it was at that point you said, we were on board except when you put intelligent design in the curriculum, correct? A. Correct, we tried. We told him that we'd compromise up to the point that you put in intelligent design. At that point, we stopped compromising. Q. Add we sit here today, Mrs. Miller, the board has purchased the text that was recommended by the faculty, correct? A. Correct. Q. The text Of Pandas is not in the classroom as a reference, it's in the library, correct? A. Correct. Q. We know that the curriculum changes resulted in a statement that's read in the biology class in the beginning of the section dealing with evolutionary theory? A. Correct. Q. That statement was intended to be read by the teachers, correct? A. Correct. Q. But so far, for reasons you've stated this morning, the teachers have not read that statement? A. Correct. Q. Dr. Nilsen has also directed that creationism is not to be taught, correct? A. I believe that's in the -- there. Q. And that intelligent design is not to be mentioned, correct? A. It's mentioned because it's read to the students. Q. Right, except for the statement, there's not to be any discussion of it, correct? A. Correct. Q. That the religious beliefs of the teachers are not to be taught? A. Correct. Q. And that the religious beliefs of the board are not to be taught? A. Correct. Q. You comply with those directives, Mrs. Miller? A. Yes. Q. You believe the other teachers do as well? A. Sure. MR. GILLEN: I have no further questions. THE COURT: All right. Thank you, Mr. Gillen. Redirect. Mr. Schmidt. MR. SCHMIDT: During cross examination, Mr. Gillen mentioned a document, an opinion letter from the solicitor. I wonder, before I begin my questioning, whether I could see a copy of that document. MR. GILLEN: If I can find it. Can we take a minute? THE COURT: Sure. Do you need it for redirect? MR. SCHMIDT: Your Honor -- MR. GILLEN: It's hard to know until he sees it. While Mr. Schmidt proceeds, I'll look for it, Judge. THE COURT: Why don't you start. We're putting inordinate pressure on Mr. Gillen to find something. MR. SCHMIDT: I don't mean to do that. THE COURT: And it's much harder when everyone in the courtroom is focusing on your efforts. So we'll take the spotlight off Mr. Gillen, and we'll go to Mr. Schmidt, and we'll start redirect, and we'll see if he can locate it. MR. SCHMIDT: All right. REDIRECT EXAMINATION BY MR. SCHMIDT: Q. Ms. Miller, a few questions. This morning, I asked you about actions that the teachers were involved in over the course principally of 2004. Mr. Gillen asked you questions about those. And the general topic was compromises that the teachers, especially the biology teachers, made with both administration and the board? A. Correct. Q. Did the teachers initiate any of the actions that come under that heading of compromises? A. No. Q. Were those compromises by the teachers always in response to a proposal or some initiative that was put forward by the curriculum committee or the administration? A. Yes. Q. As a biology teacher and the senior biology teacher, did you believe that any of those steps that you took as compromises were necessary to take? A. No. Q. And did you take those steps because you were an employee of the school district and it looked like those things were going to happen anyway? A. Sure. Q. And you were going to make the best out of a bad situation? A. Correct. Q. Is that fair? A. Yes. Q. I think Mr. Gillen asked you whether Mr. Bonsell mentioned intelligent design at the June curriculum committee meeting that we've at least tagged as probably around June 14th? A. I think it was the board meeting not the curriculum -- Q. Board meeting? A. Yes. My notes are from a board meeting, yes. Q. Was there any discussion about what intelligent design meant at that time or was it just mentioned? A. I don't remember any -- in my notes, all I have is a big question mark. Q. I think this morning you said your first substantive information about intelligent design was when you saw Of Pandas and People? A. Correct. Q. That was at the July meeting with Mr. Baksa? A. Correct. Q. You were asked by Mr. Gillen about Bert Spahr's concerns with the teaching of intelligent design and it's legality? A. Right. Q. And I think he asked you whether she was concerned about several untenured teachers? A. Yes. Q. Were you concerned about the legality of teaching intelligent design? A. Yes. Q. Were you the subject of your own concern, if you will, even though you are a tenured teacher? A. Absolutely. Q. Did you have any concern for the students who were going to be in your biology class? A. Yes. As I said this morning, I know a comment has been made that we're only mentioning it, but I'm a teacher, and everything I do in my classroom is teaching. If I don't make my students listen to the morning announcements, and I let them talk over the morning announcements, I'm not saying a word, but I'm conveying to them, I'm teaching them that it's not important to listen to the morning announcements. So even by us reading it, I was concerned, again because there's, to me, I was uncomfortable mentioning it because I know that creationism can't be taught. So I was wondering, you know, this is a gray area. Of course, this is the first time it's being tested. So me on the front line, me saying it, I was concerned of what that meant for me legally. Q. Can you think of any other situation in your experience at Dover Area High School where you were required to read a statement to students about what they were going to be taught? A. No. Q. Can you think of any other situation at the Dover Area High School where you were instructed to tell students that you would mention something, but you weren't permitted to expand on what you mentioned or answer any questions about it? A. No. Q. Did that bother you as a teacher? A. Yes. Q. Why? A. Again, I'm the teacher in the classroom. If students have questions, I feel like they can come to me to get answers. And, again, it put me in a situation where things that I had done in the past, I was unsure if I was to continue to do those. I was unsure of what I could and could not say in my classroom. Q. Is that why you were troubled by the note at the bottom of the curriculum that said, origins of life will not be taught? A. Yes. Q. Because you had been able to respond to students before, even if that was not a formal part of your teaching? A. I think that I asked the question at one of our meetings about, I have my students do current events in science, and someone brought in a current event on a new fossil discovery of man. And I didn't know if I was allowed to discuss that because, to me, that hit on origins of life. Q. When you asked for guidance from either the board or administration on that question, were you given a response? A. I was given a current events policy from Mr. Baksa. MR. SCHMIDT: Your Honor, back to the document. I don't know whether the opinion's been found. MR. GILLEN: Yes. Under the reduced pressure produced by your sage directive, Your Honor, I found it. It was part of the Miller deposition exhibits, Exhibit 5, and is an e-mail from Steve Russell to Richard Nilsen, dated August 26th, 2004, which I gladly turn over to Mr. Schmidt. THE COURT: Take a look at it and see if that raises any additional redirect. MR. SCHMIDT: No further questions. THE COURT: No questions. All right. That will conclude the examination of this witness. Ma'am, you may step down. MR. GILLEN: Your Honor, can I ask for brief recross? THE COURT: I'm sorry. I deprived you of recross. I will grant brief recross from Mr. Gillen. I apologize. MR. GILLEN: That's quite all right. RECROSS EXAMINATION BY MR. GILLEN: Q. Mrs. Miller, on redirect, you testified about, there's no other instance where you haven't been allowed to take questions, correct? A. Correct. Q. But you've already testified on my cross examination that you were concerned about liability in this area, correct? A. Correct. Q. You already testified that you told Mr. Baksa you wanted to know word-for-word what you were supposed to say if students asked about intelligent design? A. Correct. Q. Is there any way for Mr. Baksa, Dr. Nilsen, or anyone to know what questions the student would ask in the classroom? A. I guess not. Q. You mentioned that you raised questions about teaching about new developments in science, correct? A. Teaching about what? Q. New discoveries in science that might touch on your teaching of evolutionary theory, right, the fossil record? A. Yes. Q. Mr. Baksa told you, you could address those, correct? A. He gave me the current events policy, and, yes. Q. It's also true that it's been the practice of teachers to say, we don't address creationism, if you want to talk about that, you need to talk to your parents or your family, correct? A. Correct. MR. GILLEN: No further questions, Your Honor. THE COURT: All right. Then that will conclude the questioning for this witness. We have a number of exhibits. Let's take them up now, as I did with the last witness. We'll just read them and then Plaintiffs' counsel can indicate their pleasure. P-210 is the state standards for science and biology. P-148 is the letter to Mr. Baksa from the biology department. P-132 is the document created by Mr. Buckingham. P-136 is the Bob Jones University text, proposed text profile. P-138 is the survey of biology texts. P-149 is Beyond the Evolution versus Creation Debate article. P-150 is the Baksa comparison of 2002 and 2004 editions. P-135 is the biology curriculum. P-692 is the statement versions. P-94 is the draft statement. P-98 is the corrections by Miller to the draft. P-100 is the teacher's revision. P-110 is the memo regarding the biology statement. P-104 is the district press release. P-106 is the letter to Dr. Nilsen from the teachers. P-121 is the memo back to the teachers from Dr. Nilsen. All right. Do I have everything? MR. SCHMIDT: That's my list, Your Honor. I think P-135 is identical to P-209, which has already been admitted. THE COURT: All right. We'll strike that, 135. And are you moving for the admission of the remaining exhibits other than P-135? MR. SCHMIDT: We have. THE COURT: Any objection? MR. GILLEN: I have no objection, Your Honor. THE COURT: Then as read by the Court, they're all admitted, say, for P-135. Mr. Gillen, on cross, you referred to the Peterman memo, or memo to Peterman, which was D-1. And D-68 is the memo and attached planned instruction curriculum. That would be the second draft. Are you moving for the admission of those exhibits at this time or do you want to wait? MR. GILLEN: I will wait, Your Honor. THE COURT: All right. Do you have any exhibits then? MR. GILLEN: I do not, Your Honor. Thank you. THE COURT: All right. That will conclude the exhibits for that witness. Why don't we -- this is probably an opportune time for us to take a break. We're going to go to 4:30 today. We'll take about a 15 minute break, and then we'll take, what I would assume, might be your last witness of the day. All right. We'll be in recess. (Whereupon, a recess was taken at 3:15 p.m. and proceedings reconvened at 3:35 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 7 (October 6), PM Session, Part 2 THE COURT: All right. Plaintiffs' next witness. MR. SCHMIDT: Plaintiffs call Bertha Spahr. Whereupon, BERTHA SPAHR having been duly sworn, testified as follows: THE WITNESS: My name is Bertha Spahr. Bertha is spelled B-e-r-t-h-a. Spahr is S-p-a-h-r. DIRECT EXAMINATION BY MR. SCHMIDT: Q. Mrs. Spahr, are you an employee of the Defendant, Dover Area School District? A. I am. Q. What is your position with the district? A. I am a teacher of chemistry, and I am the science department chair. Q. When you teach chemistry, do you teach in the senior high school? A. Yes, I do. Q. And are you the department chair for all science teachers in the district or in the high school? A. Just high school, which is 9 through 12. Q. How long have you been a teacher? A. 41 years. Q. How long have you been teaching at the Dover Area School District? A. 41 years. Q. Have you taught courses other than chemistry? A. The first two years I was there, I taught physics. Q. How long have you been head of the department? A. About 12 years. Q. Is Jen Miller the next most senior science teacher to you in the department? A. Yes. Q. Tell me where you received your undergraduate education? A. I am a graduate of Elizabethtown College. Q. When did you graduate? A. 1965. Q. And what sort of degree did you take? A. I have a B.S. in chemistry. Q. Do you have any education beyond that degree? A. Yes, I hold a master's degree. Q. In what subject? A. In chemical education. Q. And where did you receive it? A. From Shippensburg University. Q. I'm going to ask you some questions about something that has been referred to, at least by me, as a mural. Was there a time when the science department received a mural as a donation or a gift from a graduating student? A. Yes. Q. Can you identify the student? A. Yes, Zach Strausbaugh. Q. About when did Zach Strausbaugh complete the mural? A. It was the late 1990's. I believe 1998. Q. Do you know what the subject matter of the mural was? What did it depict? A. The traditional, if you will, ascent of man. Q. Can you describe a little bit more about what you mean by the traditional ascent of man? A. The mural was 4 feet by 16 feet. At one end of it, you had an ape-like creature on all fours. At the other end of it, you had a man standing upright on his two feet. Q. Where was the mural when you saw it last? A. In Room 217, which was the room next to my room before the renovations. Q. And what year was that? A. 2002. Q. Why was the mural in Room 217? A. The young man who had painted the mural, as his senior focal project, had given the gift to that particular science teacher and, therefore, it was housed in his room. Q. Was the mural hanging on a wall in the classroom? A. No, it was not. It was sit sitting on a chalkboard tray. Q. Why wasn't it hanging on a wall? A. Because when we asked the district janitorial staff to adhere it permanently to the wall, they would not do so. Q. Did they say why not? A. No. Q. You said it was on a chalk tray? A. Yes. Q. Just someplace in a classroom? A. It was sitting in the back of the classroom, which was approximately a 40-foot room. It was both a lab and a classroom together. Q. You said in response to my question about when you last saw the mural, it was right before renovations you saw it in this room? A. Uh-huh. Q. When did you not see it or what were the circumstances around -- A. The last time I saw the mural was in August of 2002. The teacher to whom the mural was placed in his room was no longer an employee of the district, and I was going into the room to see that the new teacher who was coming had his adequate books and supplies for the coming school year. It was an in-service time. Q. And I take it, you noticed the mural was not there? A. On Friday, it was there. On Monday, it was gone. Q. What happened to the mural? A. I immediately asked the janitorial staff that served our end of the building if they had removed it for any reason. I then called the assistant principal of the school to make him aware that the mural had disappeared, and asked him if he would investigate as to what happened to that mural. Q. Were you ever told what happened to the mural? A. Yes, I was. Q. Were you told what happened to the mural around this time period, that is the beginning of school and the summer, fall of 2002? A. Yes. Q. What were you told? A. I was told that Mr. Reeser, who was at that point the head of the building and grounds, had come in over the weekend, removed the mural from the classroom, and burned it. Q. As the chair of the science department, I take it, you weren't asked for your permission to destroy the mural, were you? A. No. Q. Did the school administration, to your knowledge, do anything about the destruction of the mural? A. When it had been determined that Mr. Reeser had removed the mural and burned it, I went to our then superintendent, Dr. Nilsen, and I asked him what was going to happen to the employee who had removed the property and viciously destroyed it. Q. What were you told? A. I was told that it was a personnel issue and it was none of my concern. Q. Moving to a new topic. A. Okay. Q. Spring of the following year, did you have a conversation with Assistant Superintendent Baksa in the spring of 2003 about a board member and a concern that the board member had about how evolution was being taught in the biology class? A. Yes, I did. Q. Please tell us about when that conversation took place? A. March 31st of 2003. Q. Was there anyone else involved in the conversation besides yourself and Mr. Baksa? A. Not to my knowledge. Q. All right. Where did that conversation take place? A. Either outside my room or within the confines of my room. Q. What did Mr. Baksa tell you? A. Mr. Baksa, as he often did, stopped, if he was in the building, to contact department chairs on various issues. He said, I would like to inform you or give you a heads up that there is a member of the school board who is interested in having creationism share equal time with evolution. Q. Did you respond to what Mr. Baksa said? A. Yes, I responded by asking him, which board member are you referring to, may I ask? Q. What did he tell you? A. He told me it was Alan Bonsell. Q. Did you have any further discussion with Mr. Baksa at that time about the concerns that you just described or the desire to have creation taught 50/50 with evolution? A. Not at that time. Q. Did you relay the substance of that conversation to any of the other members of the science department at around that time? A. Yes, I did. Q. What did you tell them? A. I told them that this is an issue which I thought they may be concerned about since they were the ones that were going to teach biology. And as their department chair, I was their mentor. And there was two biology teachers who were untenured, and I knew it would be of concern to them. Q. Did you speak about this conversation with the high school principal? A. Yes. The next day, I went to the high school principal, who was then Dr. Trudy Peterman, and I asked her what direction she would give both me and the department concerning this issue. Q. When you spoke to the teachers, did you tell them to make any changes in how they taught the evolution unit in biology? A. Not at that time. Q. Did Dr. Peterman tell you to make any changes to how evolution was taught in biology? A. The only direction she gave me was to tell the biology teachers that we will teach evolution as directed by the state standards. We could, in fact, mention that there was another theory and then direct the students to either contact their families or their pastors if they wished to investigate that further. Q. Did you have another meeting later in that year, in the fall of 2003, with Mr. Bonsell where the same subject was discussed? A. Yes, we did. Q. Do you recall when that meeting took place? A. Either early in the fall -- probably September, either August or September. Q. Who was at that meeting? A. The science department. Mr. Bonsell was present. Mr. Baksa was present. I do not know others, but I'm sure there were others present. Dr. Peterman may have been there. Q. At any time before that meeting, did Mr. Baksa give you a further heads-up about Mr. Bonsell's position or concerns? A. Mr. Baksa and myself and other members of the department talked about the difference between origin of species and origin of life. We did attempt to explain and clarify this issue to him. I believe his background is not in science. And it was then our suggestion that maybe Mr. Bonsell would prefer to meet with the science department, and his questions and concerns could basically be answered by the experts in the field. Q. Is the meeting then that took place in the fall of 2003 the meeting with Mr. Bonsell that you're talking about? A. That's correct. Q. At that meeting, who was the spokesperson, if there was one, for the science department? A. Primarily Jen Miller. Q. Why was that? A. Because she is the veteran biology teacher. Q. What did she say about evolution and how it was taught at that meeting? A. We made the -- stressed the fact that evolution is taught as change over time, that we emphasize origin of species and not origin of life. Q. Did you speak much at that meeting? A. Not as much as I usually do, no. Q. Fair enough. How were things left at the end of the meeting between the science teachers and Mr. Bonsell? A. We felt it was a very congenial meeting. I, myself, and the rest of the department left there seeing that we had answered his concerns and questions, and we felt that, that was -- we had done an adequate job. Q. At that time, now we're talking about the fall of 2003 -- A. Okay. Q. -- were you using an older biology textbook? A. Yes, we were. Q. Had you already requested that it be replaced with a newer edition of the biology textbook? A. Yes. Q. Did you have a meeting in the spring of 2004 when that issue came up again, that is the purchase of a new biology textbook? A. Could you refresh my memory on this, please? Q. Sure. Do you remember in the spring, around April of 2004, when there was a meeting where the science department was asked why a new textbook was needed? A. The curriculum committee, is that the meeting you are referring to? Q. Do you recall a meeting with the curriculum committee around that time? A. Yes, there were two meetings; one occurred in April, and the other one occurred in June. Q. I'm talking about the first one. A. All right. Q. What do you remember about that meeting? A. We had been asked previously to submit both the old textbook and the new textbook of the various science courses that were being considered to the board for review. We had done so. There was also another department within the school that had done the same thing as well, and that was the family and consumer science department. So we were going to that meeting to answer questions that they may have had as to why we have chosen the new version of that book and that particular title and author over the old one. Q. Now the biology textbook was not the only book that the science department was seeking to replace, is that correct? A. That is correct. Q. At some time before that meeting in around April of 2004, did anyone from the school administrative staff ask to see a copy of the 2002 edition of the biology textbook to look over? A. Many times. We had been asked to supply them either with copies of the new book we were considering or even the old book that we had used. So more than once, we had given books to the administration for them to disseminate as they saw fit or to whomever had asked for them. Q. At this April meeting when the justification was made why a new book was needed, was there any discussion of the contents or substance of the biology book on the subject of evolution? A. I don't specifically remember the evolution topic coming up there. We did more of that at the June 14th meeting, I believe, and that was because the other department was present. We were simply asked questions as to why, for instance, the chemistry book I had suggested was a new author and a new publisher and what did I find to be more suitable in this one than the one we had had previous to this. I do remember Mrs. Brown saying, when I said to her, the reason I suggested this one is that the problems, which were written in greater detail, would be easier for the students to understand, and she agreed and said she could even do the math problems in the chemistry section, which was very good. Q. I take it, you took the lead on the chemistry book? A. Yes. Q. And did -- A. Because I'm the only one teaching chemistry. Q. And did Ms. Miller take the lead on the biology book? A. She did. Q. Did you leave that meeting in April of 2004 with the sense that the new biology book was going to be brought forward for consideration by the board? A. Not at that time. Q. Okay. Did you have another meeting later in that school year with the curriculum committee on the subject of the biology textbook? A. Yes, I believe that was in June. Q. Can you place that meeting in connection with any other events at the school or times in the school year? A. The biology book again, I believe it was Mr. Buckingham specifically, had asked to see a copy of the new Miller and Levine book. The only book we had available at that time was the teacher edition of that book. And so we forwarded the only copy we had to the administration building for him to be able to review. Q. Let me pin that down in time, if I can. A. All right. Q. Was that request between the meeting in April and the meeting in June? A. I believe so. Q. Okay. Did the meeting in June take place at around the last day of school? A. It was very close to the very end of school. Q. You mentioned the curriculum committee before. Was the curriculum committee at the meeting in June? A. Yes. Q. Who else was there? A. The curriculum committee at that time consisted of Mrs. Harkins, Mr. Buckingham, and Mrs. Casey Brown, and I believe at that meeting, Alan Bonsell attended, who was at that point president of the school board. He was at some of the curriculum meetings. Q. You were, obviously, there. Who else was there from the science department? A. The rest of the biology teachers, Rob Eshbach, Jen Miller. I'm not sure if Mr. Linker was there. He also teaches biology. But on one occasion, I know he was ill, and he's also a coach. Q. Was Mr. Baksa there? A. Yes. Q. Okay. What was your understanding of the subject of this meeting before the meeting started? What did you think you were going to be discussing going into the meeting? A. The biology book and the adoption thereof. Q. Okay. Did you become aware at some time that Mr. Buckingham had specific concerns about the biology textbook? A. I had assumed so, because he was the one who specifically asked to review the new book, so I assumed he had some concerns or questions. Q. Did you have any discussion with Mr. Buckingham at this meeting about the mural? A. The topic of the mural came up. Mr. Buckingham had made a statement that the new textbook was, if you will, laced with Darwinism, preceding this meeting. When he evaluated the textbook, which he had given us a written copy of what he had enumerated by page and where his concern was, certainly the word Darwin appeared in more than one place. The other thing that came up was the fact that there is a perception that we taught, man comes from a monkey. And when the word man and monkey came up, I asked him specifically, does this have anything to do with the mural that disappeared out of the room? He just kind of looked at me. And I said, furthermore, it has come to my attention that at a board meeting earlier in the spring, Mr. Buckingham had a picture of that mural, that somebody in the audience saw him show to the other board members. I specifically asked him where he had obtained that picture. Q. What did he answer? A. He did not answer me at all. Q. At that meeting or in that discussion at the meeting, did he acknowledge having witnessed the destruction of the mural? A. I do not remember that. Q. I'm going to show you an exhibit. Bear with me a second. MR. SCHMIDT: May I approach the witness, Your Honor? THE COURT: You may. BY MR. SCHMIDT: Q. Mrs. Spahr, I put in front of you a binder of exhibits. I've turned the page to Plaintiffs' Exhibit 132. Do you have that in front of you? A. Yes, I do. Q. Do you recognize this document? A. Yes, I do. Q. What is it? A. It was the commentary of Mr. Buckingham after he had reviewed the teacher's edition of the 2002 Miller and Levine book. Q. When you testified a moment ago that the specific concerns that Mr. Buckingham had written down included references to Darwin, is this the document you were referring to? A. Yes, it was. Q. And did you have a discussion of these concerns of Mr. Buckingham at this meeting? A. Yes, and we did try to point out to him that some of his concerns had to do with the fact that there were things written in the margin of a teacher's edition and there were suggested activities in the teacher's edition that the students would never see. They were not there and teachers would not necessarily use those suggestions. Q. Who took the lead in presenting this response by the science teachers to Mr. Buckingham's concerns? A. Jen Miller. Q. Did you attend a meeting of the school board on June 14th? A. I did. Q. Do you recall Charlotte Buckingham making a statement during the open floor session of that meeting? A. Very clearly. Q. What do you recall? A. She stood up and quoted enumerable verses from the Book of Genesis, which is in the Bible. Q. What was your understanding of the issue before the board that Mrs. Buckingham was speaking to when she made this statement? A. The controversy over this biology book and its presentation of evolution, and certainly people in the community who felt that creationism or creation-science should be given equal time was certainly within the community, and there were many people at that meeting who addressed the issue of their own opinions during public comment, she being one. Q. Let me turn to the board members. A. Okay. Q. Do you recall whether Mr. Buckingham made any statements during the meeting on June 14th on these issues? A. Several. Q. What do you recall him saying? A. In the interim of the meeting, Mr. Buckingham made the statement, 2000 years ago, someone died on the cross, and, in essence, it's time for us to stand up to be counted. This particular country was founded on Christianity, and the separation of church and state as outlined in the Constitution was a myth. Q. Did the board approve the purchase of the biology textbook at the June 14th meeting? A. No, they did not. Q. Do you recall a meeting in July with Mike Baksa and Jen Miller on a new edition of the biology textbook? A. Yes, I do. Q. During that meeting, did you participate in comparing the 2004 edition and the 2002 edition? A. I was the recorder. Q. Did you review all the parts of the two textbooks? A. No. Q. What parts did you review? A. Only the chapter dealing with evolution. Q. At that meeting in July, were you in Mr. Baksa's office? A. We were actually in Dr. Nilsen's office. Q. Was Dr. Nilsen present? A. He would float in and out. Q. Did you see at that meeting a book called Of Pandas and People? A. I did. Q. Were you given a copy of it at that meeting? A. I was not. Q. Was there only one copy available? A. I don't know that at that time, but I was not given a copy of it at the time. Q. Did you eventually read any part of the book Of Pandas and People? A. Yes. Q. When did you do that? A. Sometime either August or September, and I only read the overview. Q. I'll come back to that in a minute. A. All right. Q. Did you attend a meeting of the board on August 2nd? And by the board, I mean the school board? A. I did not. Q. Did you learn after that board meeting that the purchase of the 2004 edition of the biology book had been approved? A. I learned that there was a controversy over the approvement -- of the approval of that biology book. Q. Did you learn that the action was taken at the end of the meeting, whatever the controversy was, to approve the purchase? A. Yes. Q. Okay. Did you have a meeting with the curriculum committee on August 30th? A. We did. Q. Jen Miller was there? A. Rob Eshbach. Q. Mr. Buckingham? A. Yes. Q. Other members of the committee? A. I believe Mr. Reedle was present, and I believe Alan Bonsell was there as well. Q. What was the subject matter of that meeting as you recall? Was it using Pandas? A. It had to do with an administrative recommendation that Pandas and People would now become a reference book in the classroom as opposed to what the original proposal was in the August board meeting that was suggested by Mr. Buckingham, and that was that it would be a companion book for students to have along with the Miller and Levine book. Q. Was the science department agreeable to the compromise, as you described it, to use the Pandas book as a reference? A. We did agree to it. We felt we were trying to compromise to resolve this conflict. Q. Do you know how many copies you were to get? A. 60. Q. Was there any discussion at the meeting of August 30 about changing the curriculum? A. None at that time. We didn't know anything about that. Q. Did you attend a meeting of the school board on August 18th? A. I did. Q. Did you understand that the subject of changing the biology curriculum was on the agenda for the board that night? A. I did. Q. Did you prepare a statement to be delivered at that meeting? A. I did. Q. Would you turn to what has been marked as Plaintiffs' Exhibit 90? Do you have that in front of you? A. Yes, I do. Q. This is a document of three pages in handwriting, is that correct? A. Yes. Q. Is that your handwriting? A. Indeed. Q. Did you prepare this statement yourself? A. These were my notes. Q. Did you read the statement to the board? A. I did. MR. SCHMIDT: Your Honor, I'd like to ask the witness to read the statement here. THE COURT: Any objection? MR. GILLEN: If Mr. Schmidt can establish that she read the statement verbatim and that she cannot recall what she said at this time, I have no objection. MR. SCHMIDT: I don't think the last part is a necessary predicate, Your Honor. THE COURT: I think the first part is a proper predicate. I agree with Mr. Schmidt. Do you want to ask that question? MR. SCHMIDT: Yes. BY MR. SCHMIDT: Q. Do you understand the comment that Mr. Gillen made, Mrs. Spahr? Did you read this statement as we would read it if we were looking at your handwriting? A. Yes, I did. Q. Word-for-word? A. Pretty much. Q. Well, when you say, pretty much -- A. Yes, I did. THE COURT: On that basis, we'll let her read the statement. THE WITNESS: I made the statement under public comment, because the science department wished me to present to the community exactly where the science department stood. I stood up and said, my name is Bertha Spahr. I am a tax payer in this district, and I am a chairman of the science department. This has been a long and tiresome process of about a year and a half, obviously referring to this curriculum issue involving at that point intelligent design and evolution. The science department has made every effort to compromise with the Board curriculum committee in the following areas: Number 1, we agreed to point out the flaws and problems with Darwin's theory origin of species which centers around the change over time. BY MR. SCHMIDT: Q. Let me ask you to just slow down. A. Slow down. We agreed to state other theories of evolution which oppose Darwin's theory and would assist students seeking additional answers on that subject. We agreed to have the book Of Pandas and People available for reference in each biology classroom. And number 4, we do not teach origins of life. Since we are supposedly a standards driven district, we are directed to teach evolution, which is a state standard. The curriculum change, which is about to be voted on this evening, many feel will be railroaded through and has not followed past practice. The board curriculum committee usually has input from the professional staff, the district curriculum committee, community members, and administrators. When this draft was written, no member of the science department was invited to attend. The science department, including all of its members, vehemently oppose the board curriculum committee's draft that include the words intelligent design in our curriculum. It has been deemed unlawful, illegal, and unconstitutional to teach intelligent design, which we thought was a synonym for creationism and/or creation-science along with evolution. And I cited the Supreme Court case of 1987. We are not opposed to having a statement. We do not teach origin of life in the curriculum, since then there would be no reason to include intelligent design, which is origin of life. The book Of Pandas and People has, as its subtitle, origin of life. This inclusion will open the district and possibly its teachers to lawsuits which we feel will be a blatant misuse of the taxpayers' dollars. We further feel that our many years of professional training and science education has not been considered and appears Mr. Buckingham is only concerned with his own personal agenda. At that point, I stopped, turned to Mr. Buckingham, and asked him, Mr. Buckingham, are you going to direct my teachers to teach intelligent design if it appears on the written curriculum? He did not respond, I might add. If so, that places them in a no-win situation. They now have two choices; to defy the directive of a school board or to go into a classroom and commit what they believe to be an illegal act. My last statement was to look at them and say, I challenge you to delay the vote on this issue until we again can attempt to resolve this in a compromise beneficial to all concerned and avoid these possible lawsuits. Q. Thank you. Did the board delay? A. No. Q. Did they adopt a new curriculum? A. They did. Q. Did it mention intelligent design? A. Yes, it did. Q. And Pandas arrived one day, is that right? A. Yes, they did. Q. Did you receive the shipment of Pandas? A. I did. Q. Why, because you were science department head? A. Because I was department chair. Q. When those books arrived, what was your understanding of what was to be done with them? A. I was directed in a memo to unpack them, count them, stamp them, and number them. Q. Who gave you that memorandum? A. I do not know whether it came from Mr. Reegle. I believe it was from Mr. Reegle. Q. He was the school principal? A. He was then the school principal, yes. Q. Did you unpack the books? A. I did. Q. Did you find any materials in the boxes other than the Panda books? A. Yes. Q. What did you find? A. I found a catalogue from the company from whom they had purchased them. MR. SCHMIDT: Your Honor, I'm going to hand the witness the live copy of what has been marked as Plaintiffs' Exhibit 144. THE COURT: All right. BY MR. SCHMIDT: Q. Mrs. Spahr, I'm showing you what has been marked as Plaintiffs' Exhibit 144. Is that the catalogue you found in one of the boxes with the Panda books? A. It is. Q. Would you turn to page 29? Let me go back a second. I'm jumping ahead. I want to establish something, please. You have the catalogue in front of you, and it's on the screen, but let me ask you whether, ask you to read the title on the catalogue? A. It says, home science catalogue, the 10th anniversary catalogue. Home training tools for strengthening home schools with practical science tools. Q. Okay. Now turn to page 29. Is there a title on this page? A. There is. Q. What is the title? A. The title is creation-science. Q. And under that heading, do you find a reference to the book Of Pandas and People? A. I do, in the second column. Q. Did you eventually stamp the books and place them in the classrooms? A. I did not. Q. What happened to them? A. They were taken to the library somewhere around, I believe, December. Q. Who took that step? A. Mr. Baksa. Q. At some point after the October 18 meeting, did you receive a draft statement that was to be read by your science teachers in biology class? A. Yes. Q. What did you do with that? A. We were directed to correct it for any scientific inaccuracies so that basically what was written there would not be received inappropriately by the students that it was to be read to. Q. Did you ask any member of the teaching staff to take on that chore? A. Yes, I did, Jen Miller. Q. Okay. Did you agree with the changes she proposed? A. I am not authority in biology, and I assumed that she was professional enough to have done it, and it was submitted that way. Q. Now at some time in November, there was a press release issued by the school district about the background, if you will, of the new curriculum. Do you recall that? A. Yes, I do. Q. Would you look at the document behind tab P-104? Have you found that? A. Yes. Q. Okay. This is Plaintiffs' Exhibit 104. Do you recognize it? A. Yes. Q. What is it? A. It is the press release for the biology curriculum. Q. If you would look down towards the bottom of that first page, there is a paragraph just above the indented material that starts, in coordination. Do you see that? A. Yes, I do. Q. Is it an accurate statement, in your view, to say that the procedural statement that appears in this release was developed in coordination with the science department teachers? A. No, it is not. Q. Why not? A. Because we had no input in this. The press release was handed to us at the close of the day after it had appeared in the newspaper. Q. Let me ask you to think about that statement in a slightly different way. Did the teachers have a coordinating role in the development of the statement that was to be read to the students in biology class? A. No. We amended it for scientific accuracy so that we could not be deemed insubordinate. Q. When you became aware of that press statement, did you and the other members of the department take any action? A. I believe there was an additional statement that was released to the news media via our association. Q. Okay. Let me ask you to turn to tab P-106. Do you recognize that document? A. I do. Q. What is it? A. This was a document that was sent to Dr. Nilsen explaining to him our unhappiness with the fact that in coordination with the science department appeared in that document which allowed the public to think that we had implementation in the document that appeared. And we did not. Q. This document that appears as Exhibit 106 has the signatures of a number of teachers or apparent signatures of teachers in the high school? A. That's correct. Q. Did you sign this document? A. I did. Q. Did the other teachers sign it? A. Yes, they did. Q. Did you have a hand in preparing it? A. Yes. Q. It says in this document that the science department members strongly object to the description of their role in the development of the statement that appears in the press release? A. That's correct. Q. Why did the teachers go along with the recommendation that Of Pandas be put in as a reference book and that certain language be added to the curriculum and that a statement be read to students in particular language? Why did the teachers do that? A. The issue about the Pandas book being served in the classrooms as a reference, we have many references from many different sources. We felt that it serving as a reference was not going to be objectionable and we were attempting to positively compromise to resolve this issue within the department. We never compromised on that issue of putting intelligent design into our curriculum. And that was the reason that I made the statement on October the 18th, to assure the public that we were, in fact, not behind that edition. Q. There were words that were proposed to be added to the curriculum that the teachers did accept, isn't that true? A. That is true. Q. Okay. Why were those editions accepted by the teachers? A. The editions? Q. Not including intelligent design? A. Okay. Where we got to the end of that, we agreed that we would make the students aware of the gaps and/or flaws in Darwin's theory and other theories of evolution. And we had a period at the end of evolution. We also recommended that Of Pandas and People as the reference source be removed from the right-hand side of the curriculum. We did agree that the part at the bottom, which was given to us, we were told from Alan Bonsell that origins of life would not be taught, we agreed to accept. Q. Okay. Was this another of what you referred to earlier as a compromise? A. Yes. Q. Was this something that the teachers initiated or was the compromise a response to an initiative from someone else? A. I believe this was something that we sent back and forth. When we received the original draft, which was somewhere in the early part of October, we looked at it, saw intelligent design in our curriculum, Of Pandas and People in the right-hand side as a reference, and immediately amended the curriculum the way we, as the science professionals, felt it should be and sent it back to Mr. Baksa to be reviewed by the curriculum committee. Q. When you asked Jen Miller to make -- to review and, if necessary, make some proposed changes to the statement to be read to students, did you view that as a compromise? A. My area of expertise is not biology, so I'm not sure I can answer that question. Jen Miller could answer that question as to whether she felt it was a compromise from the biology teachers. Q. Let me ask the question in a different way. A. Okay. Q. Why did you ask Jen Miller to review that statement? A. Because she is the one who is the most senior member of the biology department and the one that had the greatest knowledge in that field. Q. Were you asked by anybody in the administration to have someone review that statement? A. No, but it is implied, as my role as a department chair, I am a facilitator to get a job done. Q. If Mike Baksa asked you to have someone look at that statement for scientific accuracy, did you believe you were in a position to say, no, we won't? A. No, I was not. Q. If Mike Baksa said, we think you ought to put the Pandas books in the classroom as reference material, were you in a position to say, no, we won't? A. Probably not. Q. During the entire consideration of the change to the curriculum, did anyone on the board ever articulate to you an explanation for why there had to be a change to the curriculum? A. No. Q. Did anybody ever explain to you why that change would improve science education in the Dover Area School District? A. No. MR. SCHMIDT: That's all I have on direct, Your Honor. THE COURT: All right. We were going to go until 4:30, and I can't imagine -- or I would imagine you want more than 10 or 15, minutes even if we went overtime for your cross. So this might be an appropriate time to end, unless you want to start your cross for the balance of the day. What's your pleasure? MR. GILLEN: I'd rather do it at once, Your Honor. THE COURT: And that makes sense to me. Anything else from counsel before we adjourn for the week? All right. We will then stand in recess today. We'll pick it up with the witness's cross examination. We will reconvene on Wednesday. Our next trial day will be Wednesday, October the 12th, at 9:00 a.m. We will not sit Thursday because of the holiday next week. We will sit Friday as well for a full day on Friday. So we'll have two trial days next week, Wednesday and Friday. And you can prepare your witnesses for those days accordingly. If there's nothing else, we'll stand in recess until then. Thank you all. (Whereupon, the proceeding adjourned at 4:20 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 8 (October 12), AM Session, Part 1 THE COURT: Be seated, please. All right, good morning to all, and welcome back for our next day of trial. We have, we're mid-examination I guess, and we can have our witness back on the stand, and I believe we're on cross, is that correct? MR. GILLEN: That's correct, Your Honor. THE COURT: All right. (Bertha Spahr was recalled to the stand.) MR. GILLEN: Judge, may I approach the witness for the purpose of providing a separate binder? THE COURT: You may. CROSS EXAMINATION BY MR. GILLEN: Q. Good morning, Mrs. Spahr. A. Good morning. Q. Pat Gillen, we met at your deposition. I'm going to ask you a few questions today about the trial testimony you gave last week. Before I do that, I'd just like to ask you have you consulted with anyone about your testimony last week in-between being released from trial? A. No. Q. Thank you very much. You did so at advice of plaintiff's counsel? A. And my own counsel. Q. Oh, good. I thank all of you for respecting that integrity of the process. Mrs. Spahr, I'd like to start my questioning of you with just a few questions about the 2003 year. It's correct, is it not, that during that year the science department learned that the purchase of the science text would be delayed due to fiscal considerations? A. Yes. Q. And there was a notion expressed in connection with that that the texts appeared to be in good and usable condition? A. That's correct. Q. We have had some discussion about a memo from Dr. Peterman that was created and it recounted a conversation that you and Dr. Peterman had, and I just want to make sure I have the details of that straight in the record. When you had that discussion with Dr. Peterman, it was about instruction in biology class? A. That's correct. Q. And you were the head of the science department at that time? A. Yes. Q. And Dr. Peterman was the principal for the high school, is that correct? A. At that time, yes. Q. And if I'm correct, you had brought to her your concern about a possible change to the biology curriculum? A. Yes. Q. And you told her it related to creationism, correct? A. That's correct. Q. Now, before you spoke with Dr. Peterman you had spoken with your science faculty? A. Yes. Q. And based on that you told Dr. Peterman that creationism per se was not taught because it was not within the state standards? A. That's correct. Q. You told her that the teachers mentioned that another theory of evolution was creationism, but they did not teach it, is that correct? A. That's correct. Q. And that's what the teachers had told you? A. Yes. Q. At this time Jen Miller was the veteran biology teacher? A. Yes. Q. And she explained to you that teachers would mention creationism as an alternate to Darwin's theory? A. Yes. Q. And she also told you that we tell the students if they want to talk about that they should talk to their pastors, correct? A. Pastors or their families. Q. That's right. And they did that because they knew that the subject was controversial and they wanted to treat it properly? A. Yes. Q. In addition the teachers would sometimes point students to books on the subjects, correct? A. They referenced the reference section of the library if they had additional questions. Q. Okay. And if I'm correct, at the end of that conversation with Dr. Peterman as reflected in the memo she told you to tell the science teachers just keep what they're doing, correct? A. Continue what we had done in the past. Q. Thank you for correcting my imprecise sentence. All right. Now, you discussed with Dr. Peterman some of the concerns you had about this notion of perhaps working creationism into the biology curriculum, correct? A. Yes, I did. Q. And one of those concerns was just a practical consideration of time constraints, the teachers were already pressed for time trying to present the state standard material, and how would another subject be worked in, correct? A. That's correct. Q. Now, at the board meetings in 2004, I'm taking you forward to -- well, actually let's look at 2003. Do you recall Barrie Callahan making mention of the notion that the students in biology didn't have books? A. Yes, I do. Q. And although she expressed that concern, I know it wasn't technically accurate that they didn't have books, correct? A. They did not have books for one year, and there was a good reason for that, and the curriculum was basically realigned to meet the state standards, and we had in one year all of 9th grade and 10th grade taking biology, four hundred students with two hundred books. Q. Right. So in a sense what she was getting at and what you're saying is that no text was assigned to each student? A. That's correct. Q. But they did have texts that they used as classroom texts? A. There were classroom sets available, and there were also books available if any student wished to take a book home. Q. And during the period when you were realigning instruction to meet the new state standards, two grades were taking biology? A. That's correct. Q. And that's what accounts for the practice of the classroom sets as opposed to assigning? A. Yes. Q. One other feature of the new state standards was that they redistributed in some ways some topics among different subjects, correct? A. Yes. Classification was removed from what we now taught in the 9th grade biology curriculum book to the middle school in life science, that area. Q. Okay. A. And ecology went into a separate course, which was now part of the course for 10th grade. Q. Right, and that would naturally affect the way you looked at the text also, correct? A. Correct. Q. Different texts have different strengths? A. Yes. Q. And I believe the 1998 Miller and Levine on biology was strong on classification, correct? A. And ecology. Q. Now, if we take that discussion with Dr. Peterman in April, or about April of 2003 until the fall meeting with Allen Bonsell, you don't recall any discussions relating to this issue? A. Not specifically. Q. Now, that fall meeting took place at the suggestion of the science department? A. I believe that is correct. Q. And you know it was suggested that if Mr. Bonsell had concerns, that the faculty was confident that they could address them, correct? A. We felt that we had the scientific expertise to answer any questions he may have had, as opposed to Mr. Baksa, whose training we believe was not in science. Q. Correct. So we have this fall 2003 meeting with Alan Bonsell, and you can't recall any specific questions that he asked? A. The questions he had basically were directed to Jen Miller, who was the lead biologist. I was there more taking note as the department chair. She was answering the biology questions. Q. Right, and you as department head it's kind of your role to facilitate that sort of interaction, correct? A. I am not a first line supervisor. Q. All right. A. I am a facilitator. Q. But you do recall as you say Jen Miller explaining the way she presented evolutionary theory in class? A. Very clearly. She tried to make the differentiation between origin of life and origin of species. She emphasized that when evolution is taught in the biology classroom, it is taught as change over time. Q. Right, and she used as an example the bird, the finches, Darwin's finch, and the change of one finch to another, correct? A. Yes. Q. We learned a lot about that Galapagos Islands. A. The bird and the tree, yes. Q. Now, the meeting as you recall was cordial, civil, collegial? A. Yes. Q. And you left the meeting believing that Mr. Bonsell had been satisfied? A. We felt that we had answered his questions and his concerns at that time, yes. Q. Now, as we've noted the texts weren't purchased in 2003, correct? A. That's correct. Q. And as the head of the science department you had some concern that if the science department missed its turn in 2003, it might have to go to the next seven years of the cycle before to get new books? A. Yes, and I brought that concern to the appropriate attention. Q. That's right, and instead what happened was the money was escrowed for next year to purchase science books, correct? A. We were not certain of that, but we were led to believe that that was the case. Q. Okay, and ultimately the book was purchased, the science books were purchased in 2004, not 2003? A. That's correct. Q. When we look now at 2004, I just want to get a sense again for this text purchase and how it unfolded, we're moving quickly, and I hope to do that, if I'm correct you recall a meeting with the board curriculum committee that occurred in the spring of 2004 prior to the June meetings, correct? A. There were several. Q. And one of them focused on a purchase of a family and consumer science text? A. Yes. That was the one that was earlier in the spring. Q. And at that meeting were present Mr. Buckingham, Mrs. Harkins, Sheila Harkins, and Casey Brown, correct? A. Yes. Q. Along with members of the faculty at the high school? A. Members of the faculty, that's true, and Mr. Baksa I believe was present as well. Q. Thank you, yes, the administration. And you recall Mrs. Harkins asking the teachers, "Do you realize that there's about five words difference between the old text and the one you're recommending for purchase," correct? A. Yes, I do. Q. You left that meeting somewhat uncertain concerning whether the family and consumer science texts would be purchased, correct? A. That's correct. Q. Then there was a later meeting in June of at which the science texts were the focal point of the discussion? A. That's true. Q. And you remember I believe Casey Brown complemented you on your selection of a new chemistry book? A. Yes. Q. The biology text was discussed again? A. That's right. Q. During that meeting, and during that meeting if I'm not mistaken that's the meeting where Mr. Buckingham expressed his conviction that teachers were addressing the origins of life, correct? A. He had asked us more than once if we teach man comes from a monkey. In response to that in utter frustration I looked at Mr. Buckingham and I said, "If you say man and monkey one more time in the same sentence, I'm going to scream." He did not do that, and I didn't have to. Q. And that's because you're Italian, Mrs. Spahr, is that right? A. Sicilian. Q. I'll remember that. A. Let's clarify that. Q. And there was this discussion that he said well, what about this, the mural came up again, correct? A. The mural came up again because I finally said to him, "Does this go back to the mural that appeared in Room 217?" He did not acknowledge that question. I then asked him, "Could you please explain where you obtained the picture of the mural that you had at a board meeting earlier in the spring that someone had seen and brought to my attention?" Q. Right, I got the picture of the mural. Now, if I'm not mistaken, Mrs. Spahr, Jen Miller explain again, "We don't address that portion of evolution theory," correct? A. That's correct. Q. Now, around this time, these are meetings in June, the faculty were given some videos and DVD's for review, is that right? A. We were given one. Q. Well, you were given three, but you looked at one, correct? A. We were given one I believe, and we did view it. I believe there was a series of three. To my knowledge we only had the one. Q. Well, you remember reviewing one, correct? A. Yes. Q. Okay. But there were three, correct? A. That is my understanding, yes. Q. And the teachers agreed upon reviewing that video that there was some validity to the information it contained? A. Yes. Q. And they indicated in fact that they'd be willing to point out gaps in evolution theory? A. That's true. Q. In fact, many teachers were already doing this -- A. Past practice we have, in the biology curriculum they had done that -- Q. Yes. A. -- in the past. Q. So kind of the notion that was discussed here was well, it will be consistency -- A. That's correct. Q. -- that will ensure. Now, we have seen some documentation related to a text put out by Bob Jones University Text Press, but Mr. Baksa never asked you to review that text? A. He handed us that piece of paper and said, "This may be a book that you would wish to consider while you're reviewing books for biology." Q. But he never told you to look at that text, did he? A. I never had a copy of the text. I just looked at the document he had handed me. Q. And you came away from that meeting with the assurance that the text recommended by the department, which at that time was the 2002 edition of Miller and Levine, would be purchased, correct? A. The last thing I said to Mr. Buckingham before we departed, because we were now all getting ready to leave for the summer, "Do I have your assurance that we will have the 2002 biology text in the hands of our teachers when fall begins?" He looked at me and said yes, and I took him at his word. Q. Yes. And if we go into the, look at the school board meetings that are taking place in June, there was still mention of this notion that the kids don't have texts, correct? A. That's correct. Q. But for the reasons we've discussed that wasn't really accurate. It's more accurate to say the texts weren't assigned to each student? A. I believe at the June 14th board meeting I made that statement during public comment to clarify that issue so that the public did not think we were asking for new books when in fact we didn't use the old ones which were there. Q. Right. Now, you didn't attend the first board meeting in June of 2004? A. That is correct I believe. Q. But you did attend the second? A. I did, June the 14th. Q. Forgive me for cutting you off. And that's because you anticipated that the texts would be purchased, approved at that board meeting as per the assurance of Mr. Buckingham -- A. The chemistry textbooks and the family and consumer science textbooks were on the agenda for adoption. I went in case there happened to be any discussion as to why this particular chem book was being recommended over some other publisher. Q. And Barrie Callahan was at that second meeting in June? A. I believe so. Q. And she also asked why the science books hadn't been purchased? A. Yes. Q. And former board members Lonnie Langione and Larry Snook were there? A. I believe. Q. And they spoke? A. Yes. Q. There were some heated exchanges between the public and the board members? A. I believe that's correct. Q. And you remember some comments by Bill Buckingham, but nothing that Alan Bonsell said? A. That's true. Q. Or that Heather Gessey said? A. That did not occur at that meeting. Q. Oh, I understand, and that's what I'm focused on, that second meeting in June -- A. June 14th. Q. Your don't remember anything Heather Gessey said? A. Not specifically. Q. Right. Or Jane Cleaver? A. No. Q. Or Angie Yeungling? A. No. Q. Or Sheila Harkins? A. No. Q. Okay. A. I remember things that pertained specifically to me. Q. And I understand that, we all do. Now, up through June of 2004 the biology text was the edition of Miller and Levine biology? A. That was the one we were proposing, yes. Q. But subsequently the department received a more recent edition, the 2004 edition, correct? A. I came in to school sometime either late in June or the beginning of July, and upon the desk was a box from Prentice Hall. I had the good fortune of opening it because I thought it might be teachers editions, which the staff would need over the summer in their preparations, only to find the 2004 edition of Miller and Levine. Q. And you knew that the board was going to have questions if you were recommending purchase of a 2002, and there was a 2004 edition? A. And rightly so, because at that point the book would already be probably somewhere between two and four years old, and if the new edition is there it would sometimes appear it would be a waste of money to buy an older edition. Q. And I believe you said that after receiving that, you had a get-together with Mike Baksa and Jen Miller and you went over the 2002-2004 text, correct? A. I immediately called Mr. Baksa to inform him that the 2004 edition was there and thought that this could now be a new issue in all of the work that it took to get the 2002 edition approved. Q. And you reviewed those two texts in light of the concerns that Mr. Buckingham had raised, correct? A. The only chapter that we reviewed was the chapter on evolution. Q. I got that, Mrs. Spahr, and what you were doing was looking to see if the presentation reflected changes in light of the controversy that had been seen in print for the last several years, correct? A. That's correct. Q. And it was around this time that the text Of Pandas and People came up as well, correct? July of 2004? A. It was at that meeting that I first saw a copy of Of Pandas and People. Q. And you started looking into that text, correct? A. I did not, no. Q. Well, didn't you learn that college professors were using it? Subsequently you started to look at the text? A. At the July meeting the text was given to Jen Miller to look at. Q. Right. A. Okay? I left that meeting without a copy of the book, and did not see it until a later time. Q. Okay, and subsequently though you did look into the text yourself? A. Yes. Q. You learned that college professors were using it? A. In the front of the book there was one high school teacher and all of the rest were college professors that had reviewed it. Q. But you thought it was not appropriate for use by 9th graders? A. Indeed. The vocabulary was too sophisticated, the complexity of the material which was presented would never have been suitable for a 9th grade student. We had enough trouble reading it. Q. Now, later then I believe you did not attend the August 2nd, 2004 -- I believe you did not attend the August 2004 board meeting because you were on vacation? A. That's correct. Q. But there was a board curriculum committee meeting in late August of 2004 that you did attend? A. Yes. Q. And that meeting featured discussion of the idea of using Of Pandas in connection with the Miller Levine text, correct? A. Yes. That original idea came out of the board meeting where the adoption of the Miller and Levine book was being presented. Q. And Dr. Nilsen and Mike Baksa, the assistant superintendent, were trying to find some sort of compromise position between the faculty and the board, correct? A. That's correct. Q. And essentially it's consisted in that the teachers didn't want the book Of Pandas used in the classroom, whereas the board was trying to find some way to work it in, is that correct? A. That's correct. Q. And what was proposed there was the notion of having the book Of Pandas available as a reference text, correct? A. In each of the individual classrooms, yes. Q. And the notion was essentially was it will be there if students want to reference it they can do that because it will be in the classroom, but we're not working it into instruction, correct? A. That's correct. Q. Now, if we end there at that August 2004 board curriculum meeting, there was really no discussion about this issue again until October, which was the start of the school year and everyone was busy, correct? A. For the most part, yes. Q. You later learned that Dr. Nilsen had accepted the donation of text Of Pandas, correct? A. Yes. Q. And then on or about, and I'm not going to hold you to the date, October 8th, 2004 you got a draft curriculum change from Mike Baksa, correct? A. That's correct, and that is the correct date. Q. Okay, and you received the draft because you were the head of the science department? A. That's true. Q. You passed it on to your biology teachers? A. Yes. Q. The draft language that you received at that time said that students would be made aware of gaps and problems in Darwin's theory, correct? A. That's correct. Q. And that was consistent with what had been discussed in June? A. Yes. Q. And it also said that students would be made aware of other theories of evolution, correct? A. Yes. Q. And again that was consistent with what the teachers had discussed in June? A. Yes. Q. But, you know, it also mentioned intelligent design, the teachers were not on board with that idea? A. We were not. Q. And it also listed the text Of Pandas as a reference, and again the teachers didn't want that listed? A. True. Q. So the science department sent back a revised draft? A. That's true. Q. And it essentially took those two things out, the mention of intelligent design, correct? A. Yes. We had a period at the end of word "evolution," and the Of Pandas and People reference was removed. Q. Right, and then it also deleted the reference to Of Pandas under the resource and materials column, correct? A. Yes. Q. And that's the column in the curriculum, proposed curriculum change that you had been given for review, correct? A. Yes. Q. Okay. Good enough. Now, the next thing I'd like to ask you a few questions about is the October 18th board meeting, and what I'd like to do is, I've put these up in the hope that they would be of some use to you. I'm going to ask you about the various versions of the curriculum change that were at issue on that evening, okay? A. I have new glasses, but this could be an issue. Q. Well, you know, if you look in that book -- A. That binder? Q. Yes. And you will see that it's essentially Defendant's Exhibit 60, 61, and then 68 I believe. A. I'm at 61. Q. All right. What I want to just get into the record for my perspective is the documents that were at issue here as we approached this meeting, and if you look at 60, Mrs. Spahr, you'll see that that's billed as the board curriculum committee's recommended changes, correct? A. 60 or 61? You referred me to 61. Q. Oh, did I? I'm sorry. Look at 60, please. A. Okay. Q. Now, I just want you to take a look at that. You'll see it contains, the cover memo contains a reference to the board curriculum committee's proposed change. Do you see that? A. Yes. Q. And if you flip the page you'll see the proposed change there. A. I see it. Q. And that includes the reference to intelligent design, correct? A. It does. Q. And it also lists Of Pandas as a material resource? A. Just like the document I was handed on October the 8th. Q. Okay. So that's marked Roman XI, hyphen, capital A, correct? You know, that's fine. The record will take care of that, I'm sorry. Flip over to Exhibit 61. A. Okay. Q. And you'll see that that's billed as the staff administration recommended change? A. This was the recommended change by the science department that we gave to the administration. Q. And that we have just discussed, correct? A. Yes. Q. Now, then if you would, Bert -- I'm sorry, Mrs. Spahr, would you look at Defendant's Exhibit 68? A. I have the cover letter. Q. Okay. And you'll see that described as a second staff administration draft on the cover memo? A. Yes. Q. And then if you'll look at that, Bert, I want to ask you a few questions. First of all, you received this just prior to the meeting on October 18th, correct? A. Probably about 6:25. Q. Okay. And if you look at that, Mrs. Spahr, you'll see that there's some highlighted text, correct? A. Yes. Q. All right, and what's significant about that, and I'm going to ask you is this, first of all if you look in the second column of the proposed curriculum change under "Unit Concepts" and so on? A. I'm there. Q. You'll see that that lowest entry references other theories of evolution, correct? A. It does. Q. But it does not include the reference to intelligent design? A. It does not. Q. Now, if you turn to the, your attention to the right, materials resources column, you'll see however that it does retain the listing of the text Of Pandas as a resource? A. Yes. Q. So in these two respects it's somewhat dissimilar and somewhat different from the board curriculum committee's version. First, it omitted the reference to intelligent design, correct? A. This one appears to, yes. Q. The second change is the note that's added there in the lower left-hand corner? A. Yes. Q. And that says that origins are not taught, correct? A. Origins of life, okay, is not taught, and that we were told was added by Mr. Bonsell. Q. Right. I'm going to ask you a few things about that. Now, you've testified previously that the teachers could have settled for this particular version, correct? A. Yes, we could have settled for that. Q. And you had heard that Mr. Bonsell had the idea of attaching that note to the curriculum, correct? A. That's correct. Q. And it was an effort to allay the teachers' concerns about including intelligent design? A. We were never told what his motivation was behind it. We were just told he contributed it. Q. Let me ask you this. You understood that that note would mean that intelligent design wasn't taught? A. We looked at this and thought that the origins of life is not taught, which it is not. And if origins of life are not taught, then there would be no reason for intelligent design, and furthermore we felt no reason for the reference of Of Pandas and People. Q. And that's because you're looking right at the subtitle of the text and it says that it deals with the central question of biological origins, correct? A. That's correct. The subtitle to the book. Q. As we get up to that October 18th board meeting you remember Dr. Nilsen making a comment to you that you thought at the time -- well, you've never really understood it, correct? A. That's correct. Q. And it was something to the effect that whatever happens, don't clap? A. That's true. Q. And it gave you the sense that you thought the administration might thought a different document was going to be approved, something that the teachers would be happy with? A. We were not exactly sure what that meant, but we sat there, waiting, to find out. Q. You had a sense that comment indicated he wasn't certain and thought the outcome would be favorable to you guys? A. That was our feeling. Q. And by that colloquial expression "you guys," I mean the science faculty. A. That's true. Q. The science faculty had discussed the October 18th 2004 board meeting and agreed that it would be good to attend, correct? A. Indeed. Q. And other teachers turned out to show their support for the science faculty? A. They did. Q. The meeting began with public comment? A. As always. Q. And that's the point at which you stood up to read the statement that you read into the record? A. Yes. Q. Now, with that statement you began by noting that the science faculty did not agree with the inclusion of intelligent design, correct? A. Very true. Q. And you felt that there was a need to make that plain in public because the you felt at least the newspaper coverage made it look like the science teachers were on board with that aspect of the curriculum change, correct? A. There were two factions in the community at the time. Many people thought that we, the science department, agreed with what the board was doing, which we did not. And the other half believed that if we did not support it, then we had to be atheists. That offended my science department because two members of the science department are sons and daughters of ministers. Q. And your basis for that is essentially, you know, rumor or what you were hearing sort of second or thirdhand, correct? A. Well, in some instances it was a little more direct than that. If we were out in a drugstore or the food store people, would come up and make comments. Q. Well, I mean you didn't hear anything firsthand accusing you of being an atheist? A. Not correctly, no. Q. And you made this statement in public because you had the sense that the newspaper coverage was creating impression that the science faculty was supporting the curriculum change? A. There had been some coverage in the newspaper, not necessarily by reporters, that gave the idea that we had been involved in the implementation of certain statements, and that was not necessarily true. Q. When you made your statement you also pointed out that the teachers had tried to compromise with the board curriculum committee? A. Yes, I did, in four different areas. Q. Exactly. And they were the science faculty had agreed to point out problems with Darwin's theory? A. That's true. Q. They had agreed to make students aware of other theories of evolution? A. Yes. Q. They had agreed they would assist students if they wanted to seek other reference material on the subject? A. Yes. Q. They had agreed to have Of Pandas in the classroom as a reference text? A. As a reference text. Q. And you also observed that the teachers did not teach origins of life. A. That is correct. Q. Okay. A. And that was for the clarification of the community. Q. Okay. In addition you asserted in this statement at the public meeting that teaching intelligent design would be unlawful, illegal, and unconstitutional? A. That's how we felt, yes. Q. And the basis for that was your opinion that intelligent design was creationism? A. Was a synonym for. Q. Okay. A. And I got that idea when I looked at the catalog from which the book had been ordered and it was listed under creation science. Q. Speaking of that catalog, Mrs. Spahr, you didn't pass that on to Dr. Nilsen, did you? You kept that in your files? A. Yes, as I do all other book catalogs that I receive. Q. And you didn't pass it on to Mr. Baksa either? A. No. Q. You had in your statement you also expressed the concern that the inclusion of intelligent design would possibly open the teachers to a lawsuit? A. We were concerned over that issue, yes. Q. I understand. And part of that related to the untenured teachers in the district, correct? A. That's correct. Q. In fact, if I'm not mistaken you asked Bill Buckingham in the middle of your statement whether or not the teachers would be required to teach intelligent design? A. That was part of my statement. Q. And you asked for a delay to work out some sort of compromise? A. I gave them a challenge. Q. There was a heated discussion after Mr. Buckingham responded to your comments, correct? A. When I finished my statement Mr. Buckingham looked at me and wanted to know where I had received my law degree. There was a gasp that went through the audience, I looked at him, I remembered what a former principal had told me, and I did not dignify it with a comment, and sat down. Q. And the gasp was from the audience? A. It was. Q. And you know, Bert, that's because you've been teaching at Dover for forty years? A. I have. Q. So there's a lot of people in the community who know you? A. That's true. Q. And respect you? A. I hope so. Q. And when that comment was made there was a negative reaction on the part of the crowd, and in fact Lonnie Langione got up and -- well, you described in your deposition I believe practically jumped out of his chair and took issue? A. And came to my defense, yes. Q. There was a lot of heated discussion in the aftermath of that comment, correct? A. Yes. Q. And as things wound down, Mr. Langione asked what does it mean in the classroom, correct? A. He did. Q. And there was a notion expressed that well, a statement might be read in the classroom, correct? A. Yes. Q. Now, later stepping back from that October 18th, 2004 board meeting there was another meeting on or about October 28th, 2004, correct, Mrs. Spahr? A. Would you please refresh my memory on what that meeting was? Because we attended many. Q. Yes, and once more my question was imprecise. It was a meeting with Mike Baksa. A. Concerning? Q. Concerning the, what the curriculum change would mean for instruction. A. Okay. Thank you. Q. No problem. You remember that meeting? A. Yes. Q. And he presented a draft statement to the science faculty? A. I believe it was four paragraphs. Q. And Jen Miller has already testified there was some back and forth between the science faculty and Mr. Baksa over this statement, its accuracy? A. I delegated her as the veteran biology teacher to be in charge of tending to that particular thing since it did not affect me and my subject. Q. Right. Because you're a chemistry teacher, correct? A. That's correct. Q. And Jen Miller was the veteran biology teacher. Good enough. Now, Mrs. Miller, she solicited input from the faculty about the proposed changes -- A. The other biology teachers -- Q. Mrs. Miller solicited input from the other members of the science faculty regarding her proposed revisions to the statement that had been presented to her by Mr. Baksa? A. That's true. Q. Okay. Now, we know that ultimately the teachers refused to read the statement for the reasons you've expressed, correct? A. Yes. Q. All right. You felt that if, the science faculty, that is, felt that by reading the statement they would give credibility to the notion that intelligent design was a scientific theory? A. That's true. Q. And they were opposed to that notion? A. They were. Q. The basis for your particular opinion, Mrs. Spahr, is that you think intelligent design cannot be proven scientifically? A. That's correct. Q. Therefore, in your opinion it doesn't belong in a science class? A. That's true. Q. When you say it can't be proven, it's with reference to your understanding of the notion of testability? A. In science we have a very defined pattern of behavior to test anything. We observe and gather data, we propose a question, we formulate a hypothesis, we go into the laboratory to test the hypothesis and draw a conclusion. After many people have done the same experiment we are now prepared to propose a theory. A theory is a confirmed explanation, and from that we develop models. Q. And I do understand your view of the matter. Just in contrast you think that evolutionary theory is testable according to the criteria you've just described? A. My biology teachers feel that way. That is their field of expertise. Q. Okay, and that's based on their training as science teachers, correct? A. That's correct. Q. Now, ultimately, Mrs. Spahr, I just want to look at the current situation so far as you can speak to it, the 2004 edition of Miller and Levine was purchased as recommended by the science faculty? A. Yes, it was. Q. The text Of Pandas and People is a reference text in the library, correct? A. In the library. Q. Yes. Not in the classroom? A. That's true. Q. Okay. The curriculum change has resulted in a statement that's read in class? A. Yes. Q. Biology, however, as taught in the classroom is taught according to state standards, correct? A. Yes. Q. Dr. Nilsen has directed that creationism is not to be taught, correct? A. That you would have to deal with the biology teachers. That is my understanding, yes. Q. Okay, and religious beliefs of teachers are not to be taught? A. Yes. Q. And the teachers never taught that, correct? A. To my knowledge. Q. They referred students with those sorts of questions to their pastors or their family? A. To their pastors and/or their own family. Q. Okay, good enough. And the religious beliefs of the board are not to be taught, correct? A. I am assuming so. Q. Okay. So far as you know teachers comply with those directives? A. To my knowledge, yes, although I am not a first line supervisor. So I do not have the opportunity to go into the classroom to see exactly what they are teaching. I have a full teaching load of my own. Q. Okay. I've got one last question I want to ask you, Mrs. Spahr, and it's just for the purpose of putting things in context and being fair. As I've told you, I understand that you're well respected in the community and you have taught there for forty years. But do you recall in your statement that you accused Mr. Buckingham of operating from a personal agenda? A. I do. Q. Did you ever give any thought to how he felt when you accused him of that at that public meeting? MR. SCHMIDT: Your Honor, I think that strikes me as argumentative and certainly beyond the scope of direct examination. Mrs. Spahr is not a party. THE COURT: Do you care to respond? MR. GILLEN: Well, Your Honor, I mean she has testified, and I have tremendous respect for this witness, who I've deposed, that she felt deeply insulted and so on. What I'm -- and I understand that, but what I'm trying to get across for the court so you can see the context of the meeting is that prior to that unedifying comment, you know, Mr. Buckingham had also been accused of operating from a personal agenda, not with the best interests of the students at heart and -- THE COURT: Well, if Mr. Buckingham testifies and if he says that he was and he was insulted, and if that prompted comments by him, then I think that's relevant. Her impression as to whether or not he was insulted I'm not sure is in any way relevant to the proceedings, so I'll sustain the objection. MR. GILLEN: Okay. THE COURT: It doesn't move the ball as far as the case is concerned. MR. GILLEN: Okay. Thank you, Your Honor. With that in mind, no further questions. THE COURT: All right. MR. SCHMIDT: No redirect. THE COURT: Thank you, Mr. Gillen. No redirect? Ma'am, you may step down. That completes your testimony. We have some exhibits that we must take up, starting with the direct examination last week. We have the notes by the witness, that is P-90, and we have the catalog, which is P-144. Are you moving for the admission of both of those exhibits? MR. SCHMIDT: I apologize, Your Honor. Yes. THE COURT: That's all right. I lost you there for a minute. Any objection, Mr. Gillen? MR. GILLEN: Well, P-90 I would object to. It's been read into the record and it's a statement that she prepared in anticipation of the meeting. MR. SCHMIDT: Your Honor, she has read the exhibit into the record. So rather than tussle about that, the contents of it are part of the record. THE COURT: How about P-144, Mr. Gillen? MR. GILLEN: If you'd give me a moment, Your Honor? THE COURT: All right. MR. GILLEN: I'd object to that, Your Honor. THE COURT: On what basis? MR. GILLEN: It's hearsay. It doesn't really have any bearing on -- she's testified that showed up in a box when the book was ordered. It's not a business record or anything of that nature. It was never passed on to the administration. They didn't know it existed until she produced it. So it's hearsay and not relevant. MR. SCHMIDT: Your Honor, she received the catalog with the book. She received them as the designated employee of the defendant school district, who was the person who received the books. She unpacked it. There's no challenge to the authenticity of the document, and it is the publishers' or distributors' description of the nature of the text that's highly relevant to this case, so it seems to me that it comes in. THE COURT: Well, she's the designated recipient. She is an agent of the school district. You know, I didn't hear an authenticity challenge. I don't think there is one. Her testimony was that it was in the box when she opened it. I'm inclined to let it in, unless you have another argument you want to make, Mr. Gillen. MR. GILLEN: Well, I've made my argument. I don't think it's a business record. It's something that she basically received in the mail. I mean, it's not a business record in the sense that it's not her job to keep the catalog, there's no testimony to that effect, and she didn't pass it on to the administration, so they didn't even know it existed. MR. SCHMIDT: Your Honor, on the second issue, there was no reason for her to pass it on to the administration because she received it as an employee of the district and kept it as part of her files as the head of the science department, which was her testimony. THE COURT: Yes. I don't see her failure to pass it on to the administration as being necessarily fatal. MR. GILLEN: I guess what I'm saying, Your Honor, is if she would have received the catalog any number of ways, her mailings or mailings she received, solicitations from any number of sources. THE COURT: Well, you could cross her on how she received it. I mean, then you're expanding your objection to say conceivably she got it another way than in the box that was sent, but I didn't hear that. MR. GILLEN: No, you did not. I have no reason to believe it didn't show up in the box with the book. THE COURT: So the box was designated, to the extent she was the duly appointed agent to receive it, it was within it. The purpose of the exhibit is to show that within the box there was a brochure from the publisher that had other books and the books were under certain, under a certain designation. I'll allow it for that purpose, the purpose offered by the plaintiffs, and nothing more. So we'll overrule your objection in that regard and we'll admit P-144. P-90 has been withdrawn, so there's no ruling on that. Now, on cross we have D-60, D-61. D-60 is the memo and change curriculum guide. D-61 is the memo and planned curriculum guide, D-61 is, and D-68 is the memo and the second draft. Now, some of those may have gone in under plaintiff's designations I think. MR. SCHMIDT: They already have. THE COURT: Were all three of them admitted, Mr. Schmidt? MR. SCHMIDT: Yes. THE COURT: So we don't need to dispose of those in any way. They just had the plaintiff's exhibit numbers, and we'll do those. I think that's everything. Tell me, gentlemen, if I'm wrong, if I've missed everything. MR. SCHMIDT: I believe you're right, Your Honor. MR. GILLEN: I believe you're right. THE COURT: All right. Then we'll take your next witness. MR. WALCZAK: Plaintiffs call Dr. Brian J. Alters. (Dr. Brian J. Alters, Ph.D. was called to testify and was sworn by the courtroom deputy.) MR. WALCZAK: Your Honor, may I approach the witness? THE COURT: You may. DIRECT EXAMINATION BY MR. WALCZAK: Q. Good morning, Dr. Alters. A. Good morning. Q. Where do you live? A. I live in Montreal. Q. What do you do there? A. I'm a university professor. Q. What do you teach? A. Science education. Q. Can you tell us a little bit about your educational background? A. Yes. I have a bachelors degree in biology and a Ph.D. in science education, both from the University of Southern California. Q. Matt, can I ask you to pull up Plaintiff's Exhibit P-182, please? I'll show you what's been marked as Plaintiff's Exhibit 182. Do you recognize this document? A. Yes, I do. Q. Is this an accurate representation of your curriculum vitae? A. Yes, it is. Q. And is it accurate as of early 2005? A. Yes. Q. So you said, I'm sorry, you got your undergraduate degree from University of Southern California, and what was your major? A. Biology. Q. And your degree from the University of Southern California was in what? A. Biology, and my Ph.D. was in science education. Q. On page 1 below that it says university appointment. Could you describe for us your professional appointments? A. There's an update on that since within the last month I've been named in a Dowd Chair, an eight million dollar Dowd Chair in science education, the Tomlinson Chair in science education. Q. And you teach at McGill University in Montreal? A. Correct. Q. And after you got your Ph.D. where did you start teaching? A. Harvard. Q. And could you tell us a little bit about what you taught? A. I was appointed in the philosophy of education research center, and taught science education methods courses in the graduate school of education. I designed a course that I taught, and -- Q. What course was that? A. It was, I don't know if I remember the title, but it was something like evolution, education, and religion. Q. And how long did you teach at Harvard? A. One year, and I also supervised science, to-be science teachers. We called them in-service science teachers, or pre-service science teachers. Q. And when you say supervised, what did that entail? A. It entailed helping them prepare for classes. I would go out in the schools and watch them teach and give criticism, write reports back to Harvard. Q. And after your work at Harvard what did you do next? A. There was an opening at McGill in science education, and so I decided to take that appointment. Harvard kept me on for two more years in the philosophy of education research center, and then after that they appointed me in the science education department at Harvard, and I've held that appointment ever since. Q. So, I'm sorry, you teach at both Harvard and McGill? A. Well, I previously taught at Harvard, I since have taught at McGill, and I go back to Harvard to give lectures on how to teach evolution for example to the pre-service teachers. Q. Now, you've developed some expertise I gather in science education? A. Yes. Q. Now, is that different than science? A. Yes. It's how to teach science as opposed to the act of science. It's more of teaching what the scientists have produced knowledge-wise and the process that they use. Q. And is that a specialty in and of itself? A. Yes, it is. Q. Now, is that different than say education? A. Yes, because it focuses on science education. It's particularly science. Q. And have you developed a subspecialty within science education of how to teach evolution? A. Yes. My real focus and interest is in evolution education, and even within that my particular focus is concerning problems teachers have with students bringing in problems with their religion conflicting with what they perceive to be problems with evolution and how students themselves feel about it and how teachers feel about it and the conflicts they have. Q. And have your, has your research and other activities involved looking at students' problems or difficulties students have in learning about evolution? A. Yes. I've interviewed well over a thousand students at various levels, asking them what the problems if any they have concerning evolution with their religion or wherever the interviews lead. Q. And I notice on page 2 of your curriculum vitae there's a long list of activities under something called funding. Now, are these activities for which you receive either government or private foundation grants to do research and activities? A. Yes, but first I'd like to mention there's an update on that also within the last, since this CV in the last couple of months I received another grant, $175,000 from the federal government of Canada the research Islamic views of evolution concerning teaching students and teachers. So but in answer to your question, other than that update, yes, these are from government and corporate, and they're all involving some form of science education. A couple of them are awards I think, yes. Q. Now, you're teaching at McGill in Canada and you mentioned this foundation grant to do research in Canada. Is there any difference between how science is taught in Canada and how it's taught in the United States? A. No. Q. And you've taught in both countries? A. Yes. Q. And there's no difference? A. No, there's none. Q. Now, have you received grants from the National Science Foundation to do research and activities? A. I have not received grants directly from them. I've researched and evaluated for the National Science Foundation science education programs, large ones in the millions of dollars that university professors run for science teachers. Q. So these are National Science Foundation sponsored research and activities? A. Yes. Q. And what is the National Science Foundation? A. It's the largest science and science education granting institute I guess you would call it, organization I think is better, in the United States if not the world. Q. And is this a government agency? A. Yes. Q. Is this an arm of the federal government? A. Yes, it is. Q. And I'm sorry, what kind of activities have you done at the request of the National Science Foundation? A. When the NSF, if you'll allow me to use the acronym, when the NSF gives funds to university professors to do research in science education or to run science education programs for teachers, they generally would like to see those millions of dollars that are going to those professors to be evaluated, to see that the programs are good, to get some feedback concerning that, and sometimes the evaluations are 40, 50, 60 pages long and they're sometimes quite extensive, and I'm called in to do some of those. I've done a few, and some are listed here. Q. Is this more of a quality control? A. I don't want to presuppose what the NSF is thinking concerning that, but I think that's reasonable. Q. Are there a couple of other notable activities or research projects that you've undertaken here that you might tell us about? A. Well, I'm kind of fond of the Lucent Technologies Foundation. It was a worldwide competition, and the only grant that was awarded in Canada was mine, and it was about $668,000. We worked with hundreds and hundreds of to be teachers and in-service teachers both, people who are currently practicing the art and science of teaching to develop science activities, and so those were essentially put into a large book form and apparently are being used by hundreds of schools presently. Q. When you say science activities, what do you mean? A. How to teach a particular science concept, whatever it would be, to figure out a new, entertaining, interesting way, novel way of doing it hopefully. Q. And you developed a number of these activities to facilitate science education? A. Yes. With a lot of help from a lot of other people, but I was the principal investigator on the grant, yes. Q. On pages 3 through 5 of your CV, starting in the middle of page 3, you have many listings under what are known as refereed articles, and then there's a section, other publications and scholarly writing. What are refereed articles? A. Refereed articles are where they're not automatically published. They're reviewed in some way, and criticism comes back for possibly, you know, we're not publishing this, something like that. Q. And other publications and scholarly writings are, how would you describe those? A. Those are ones that really couldn't be considered refereed articles. So it's sort of a default category. Q. And under the refereed articles what do most of them concern? A. Most of them concern something to do with students' understanding of evolution and the conflict with creation and their perceived conflicts concerning that. Q. And do you also attend conferences? A. Sure. Q. And are there -- we've heard from Professor Miller about scientific associations, the National Academy of Sciences, American Association of the Advancement of Science. Are there science education associations as well? A. Yes, there are. Q. And what are the largest and most important ones? A. The largest scientific association in the United States is the National Association of Science Teachers, NAST. There's over fifty thousand members. The largest biology organization in the United States for teachers is NATB, National Association of Biology Teachers. Q. And have you been a featured speaker at these conferences? A. Featured speaker, keynote speaker at some conferences, yes. Q. And how many conferences have you spoken at about science education? A. Probably close to a hundred, if not more. Q. And are most of those about teaching evolution? A. Yes. Q. You mentioned also you taught science teachers how to teach science. A. Yes. Q. And that's both at Harvard and at McGill? A. Yes. Q. And how many teachers would you estimate you've taught? A. Over a thousand. Q. Now, are you familiar with creationism and intelligent design? A. Yes. Q. And what have you done to develop your familiarity with creationism and intelligent design? A. Well, I have read easily over fifty books on creationism, hundreds of articles and pamphlets, products from creationists, interviewed again over a thousand students about and teachers about the problems, their problems, their perceived problems with evolution and creation, tried to understand better what they perceived as their problem. Q. And you say that you've read creationist articles and many books on creationism. Do you equate intelligent design with creationism? A. Yes. It's a form of creationism. Q. Do you view it as science? A. No. Q. Why not? A. There's so many reasons, but I guess the primary reason is that it involves breaking one of the ground rules of science and methodological naturalism. It brings in supernatural causation into science, which is against most foundational ground rules. Q. Does that mean supernatural causation doesn't exist? A. Oh, no, it doesn't mean that whatsoever. It just means within the game rules of science they don't entertain supernatural causes. Q. I want to turn back to page 3 of your CV, and at the top there apparently you're also the author of several books. Could you tell us briefly about the, what are the first four books there? A. Well, the first book is Biology: Understanding Life. It's a university biology non-majors textbook. Q. I'm sorry, you say a biology. So that's not a science education book. That's a science book? A. Correct. Q. But you're not a scientist? A. Correct. Q. Your expertise is in science education? A. Correct. Q. So can you explain to us why you're a co-author on a science biology textbook? A. My co-author has bachelors and masters in biology and a Ph.D. in education also. Because what textbooks really do is teach, that's basically what they're doing. And so authors such as us of course consult scientists and get help from hundreds literally on the discipline, hundreds of scientists consulting various areas of content, critiquing it, sending back comments and so forth to help us on the science part, but the textbook itself is really an author's attempt to teach a student. Q. And that just came out this year? A. Yes. Q. And what's the second book there? A. Teaching Biology in Higher Education. It's a book written to instructors at the college level on how to teach biology. Q. And that came out this year as well? A. Yes. Q. Do you know whether this book is being used in colleges and universities? A. The publisher tell me it's doing okay. Q. And how about the third book? A. Teaching evolution in Higher Education: Methodological, Religious, and Non-religious Issues. This is a book specifically about the conflict that instructors see students bring into their courses concerning evolution, and it also came out in 2005. It was a good year. Q. And does it give advice to science professors how to deal with students who have creationist beliefs? A. Yes. It does more, yes. Q. What's the fourth book there? A. Project Collaboration: One Large Experiment. It's a book about the activities I mentioned earlier, the compilation of the work of a hundred graduate students in education, hundreds of teachers out in the field, and about fifty some graduate students in science. Q. Now, I want to focus a little bit more on the fifth book listed there, and what is that book? A. Defending Evolution in the Classroom. Q. And what I'm holding in my hand, is this a copy of that book? A. Yes. Q. Now this book received some endorsements, did it not? A. Yes, it did. The president of the American Association for the Advancement of Science endorsed it in writing. Q. Let me stop you for one minute there. Matt, could you pull up the exhibit -- this is Plaintiff's Exhibit 212, and is this a cover, is this the cover of your book? A. Yes, it is. Q. And Matt, could you turn to the next page, please? And is this a page, one of the pages of endorsements? A. Yes, it is. Q. And the first one is by a gentleman identified as Stephen J. Gould, professor of zoology and geology at Harvard University. Who is, or who was Stephen J. Gould? A. The late Stephen J. Gould is considered by most people to be one of the top evolution area theorists and popular writers of evolution to live in the past century. He was a professor at Harvard as stated there. He'd been president of the AAAS, American Association for the Advancement of Science, and I think he was, before his death he had been awarded close to honorary doctorates. Q. And what Professor Gould says about your book is, "This book becomes a vital document in one of the most important issues in our age," is that correct? A. Yes. Q. And did Professor Gould also write the foreword to your book? A. Yes, he did. Q. And who is Howard Gardner? A. Howard Gardner is one of the leading education professors in the nation, if not the world. He's a professor at Harvard. Q. And we'll just do one more, the third endorsement there is from Ernst Mayr, and I believe we have heard this gentleman's name in the courtroom already. Who is Ernst Mayr? A. Ernst Myer passed away recently at age 100. He was again one of leading evolution scientists of the century, considered by most, and was a professor at Harvard also. Q. And what he says about this book is, "This book should be in the hands of every educator dealing with the subject of evolution," did I read that correctly? A. Yes. MR. WALCZAK: Your Honor, we would move Dr. Alters as an expert in science education with a specialty in the teaching of evolution. THE COURT: Any questions by defense counsel? MR. MUISE: Your Honor, pursuant to the stipulation, we have no objections to his qualifications to testify as such. THE COURT: Thank you, Mr. Muise. He is admitted for the purpose as stated by Mr. Walczak, and you may proceed with your direct examination. MR. WALCZAK: Thank you, Your Honor. BY MR. WALCZAK: Q. Dr. Alters, you understand that the Dover policy on intelligent design includes the reading by school administrators of a four paragraph statement, and then there are restrictions placed on what teachers can and cannot discuss in class about that statement, is that your understanding? A. Yes. And the policy also concerns other aspects, I guess the mention of the, part of the policy within the curriculum, the Dover curriculum. Q. And do you have an opinion about whether the policy promotes students' science education? A. Yes. Q. And what is your opinion? A. If anything it's detrimental to their science education. Q. Do you have an opinion about whether the Dover policy constitutes good pedagogy? A. Yes. Q. And what is your opinion? A. It does not promote good pedagogy. Q. We're going to take a little bit of time to look at the basis for your opinions. Is teaching students about evolution important? A. Yes, it's extremely important. It's the overarching theme, the underlying concept, it's the glue that holds all of the life sciences together. It would be somewhat like teaching a physics course without talking about gravity, something like that. It's probably even more central to biology. Most biology professors have indicated such. Q. Now, certainly not every student in a high school going is going to become a scientist, is that a fair statement? A. Correct. Q. Why is it important for students who don't become scientists to learn about evolution? A. Well, evolution involves so many aspects of their life. Bacterial resistance, pesticides, evolution of organisms for pesticide problems, environmental issues, in general just their reading of environmental issues in newspapers and magazines, voting on issues, thinking about getting involved in such issues. Many of those involve evolution. There's many more of course. It's interesting to know how the diversity of life and why things look the way they do and are the way they are, it's extraordinarily important, and most people like it also for discussions. It's somewhat interesting, you know, how am I related to those other organisms. Q. Now, how would you define good pedagogy? First of all let me ask you, what is pedagogy? What does that word mean? A. Generally it means the art and science of teaching. Q. So what is good pedagogy? A. Well, I can speak for science education. Good pedagogy is usually underpinned by an educational theory called constructivism. It goes by some various other terms, but basically it's constructivism, and it's that a child is just not a vessel into which we pour knowledge. We just don't do that. The child interacts with what they're hearing and constructs their own knowledge of that. And so most, most areas of science education underpin their activities and their learning and so forth on constructivism. So that's kind of the central theme for most of it. Q. And does good pedagogy involve students' misconceptions? A. Yes, it does, because again we just can't pour knowledge into students. We have to find out what it is that they have preconceptions about, or if it's not directly about the subject being taught, it's something that they misunderstand that's impeding them to understand what is being taught currently. And so diagnosing those misconceptions is very important in figuring out a treatment to be able to be used in the classroom so the students can overcome those misconceptions so that they can learn what needs to be learned. Q. And does good pedagogy also mean that you don't engender needless misconceptions? A. Absolutely. There would hardly be anything worse for a science teacher to do than engender needless misconceptions. Q. Let's talk a little bit about selecting course content for a biology class. Are there sources that teachers, administrators, and others can consult to decide on say a science curriculum content? A. Sure, many of them consult the National Education Association, National Science Teachers Association, NABT that I mentioned previously, National Association of Biology Teachers, absolutely. Q. And do those organizations rely on any others in helping them formulate positions on appropriate science curriculum content? A. Sure they do, because they're generally made up of science educators. So they often need help on the science aspect, so then they look to the national and leading worldwide science associations for help. The National Academy of Sciences, the most prestigious science organization in the United States, if not the world. AAAS, American Association for the Advancement of Science, it's the largest general scientific society on the planet. Their publication is read by a million people subscription. They serve ten million individuals. Vast resources for science education association. Q. And do you know whether the science education organizations, the National Science Teachers Association and the National Association of Biology Teachers, have taken positions on the teaching of evolution and intelligent design? A. Yes, they have. Q. Are there also -- we'll come back to that in just a moment. Are there also standards put out at the state level? A. Yes. Q. And does every state have standards? A. I believe there's one that doesn't, but I believe 49 do. Q. And you're not going to tell me Pennsylvania doesn't? A. No. Pennsylvania does. Q. Pennsylvania does have standards on teaching science? A. Yes. Q. And do those standards also relate to teaching biology? A. Yes. Q. Now, if a school board member wanted to learn, or a school board member or anybody else wanted to learn what to teach in science class, are there places they could go to research this? A. There's many places, but the educational associations I previously mentioned, NST A and NABT, have wonderful web sites and they publish books, pamphlets, they have a vast amount of resources, they hold annual conferences, regional conferences, yes. Q. And do you know whether the scientific associations also have web sites that are readily accessible to the public? A. Yes, they do. Q. And how about the Pennsylvania standards? Do you know whether those are available on-line? A. Yes, they're on-line. Q. And you've checked and been able -- A. Yes. I know, yes. Q. Let's come back to the national science associations' positions, not science education associations, and you testified that the science education associations are to some extent derivative of, their positions are derivative of what the science organizations do? A. Well, it would be tough for a national or any science education association to make statements about science without checking with the scientific association. Q. So they tend to do that in formulating positions? A. Yes. Q. And do you know what the National Academy of Science, what position they've taken on evolution and teaching the occurrence of evolution and about intelligent design? A. Yes. They're very much for, extremely for teaching the science of evolution, and very much against teaching intelligent design. Q. Matt, if you could pull up exhibit P-192? Is this a publication from the National Academy of Science? A. Yes, it's Science and Creationism: A View from the National Academy of Science. Q. Is this put out for scientists? A. No, it is not. Q. Who is it put out for? A. It's put out for teachers. Q. And I've asked you to highlight a passage. Matt, if you could pull up, and this is from the page marked "Conclusion" in the publication Science and Creationism. Could you please read that passage into the record? A. Yes. "Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science. These claims subordinate, observe data to statements based on authority, revelation, or religious belief. Documentation offered in support of these claims is typically limited to the special publication of their advocate. These publications do not offer hypotheses subject to change in light of new data, new interpretations, or demonstration of error. This contrasts with science, where any hypothesis or theory always remains subject to the possibility of rejection or modification in light of new knowledge." Q. And do you know whether this reflects the official position of the National Academy of Sciences? A. Yes, it does. Q. And earlier you testified that AAAS, or the American Association for the Advancement of Science, is the largest organization of scientists I think you said in the world? A. Yes. Q. Certainly in the United States, and have they taken a position on teaching about the occurrence of evolution and intelligent design? A. Yes, they have. Q. Matt, if you could pull up Exhibit P-198, please? And is this AAAS, a board resolution on intelligent design? A. Yes. Q. If you could highlight the first three or four whereas clauses? Dr. Alters, if you could read for the record the highlighted passages? A. Okay. "Whereas, ID proponents claim that contemporary evolutionary theory is incapable of explaining the origin of the diversity of living organism; whereas to date the ID movement has failed to offer credible scientific evidence to support their claim that ID undermines the currently scientifically accepted theory of evolution; whereas the ID movement has not proposed a scientific means of testing its claims, therefore be it resolved that the lack of scientific warrant for so-called intelligent design theory makes it improper to include as part of science education." Q. Now, again this is a science association? A. Yes. Q. This isn't a science education association? A. Correct. Q. But they have put out this statement and taken this position about science education? A. Yes. Q. And do you know this to be their formal position? A. It is. Q. Are you aware of any science associations that have taken a position that students should be taught that there are questions or controversies about the occurrence of evolution? A. No. Q. Are you aware of any science associations that have taken a position that intelligent design should be taught in science classes? A. No. Q. So you're aware, and you're aware that they have taken positions and said no, it should not be taught? A. Every scientific association that I'm aware of, and there are a lot of web sites listed in various places, such as the National Center for Science Education, when they make a statement concerning evolution or intelligent design, they always say intelligent design should not be taught. MR. WALCZAK: Your Honor, this might be a good time, or we could go another ten or fifteen minutes or -- THE COURT: No, why don't we take our morning break at this time. I appreciate your suggestion, Mr. Walczak. We'll do that, we'll break for twenty minutes, and we'll return and pick up the direct examination of this witness. We'll be in recess. (Recess taken at 10:20 a.m. Trial proceedings resumed at 10:45 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 8 (October 12), AM Session, Part 2 THE COURT: Be seated, please. Mr. Walczak, you may continue with your direct examination. DIRECT EXAMINATION CONTINUED BY MR. WALCZAK: Q. Thank you, Your Honor. Professor Alters, we just reviewed the statements of science associations on teaching of evolution and intelligent design. I want to now focus on positions of national science education and science teacher associations, and you testified earlier that they have taken positions on the teaching of evolution and intelligent design? A. Yes. The NST A and NABT in particular, yes. Q. Matt, if you could publish Plaintiff's 5exhibit 183, please? And if you could highlight the introduction there, please? First of all, Dr. Alters, do you recognize what's been marked as Plaintiff's Exhibit 183? A. Yes. It's the NST A position on the statement of teaching of evolution. Q. And we have highlighted the introduction here. If you might read this into the record, please? A. Okay. "The National Science Teachers Association (NSTA) strongly supports the position that evolution is a major unifying concept in science and should be included in the K-12 science education frameworks and curricula. Therefore, if evolution is not taught, students will not achieve the level of scientific literacy they need. This position is consistent with that of the national academies, the American Association for the Advancement of Science, AAAS, and many other scientific and educational organizations. NST A also recognizes that evolution has not been emphasized in science curricula in a manner commensurate to its importance because of official policies, intimidation of science teachers, and general public's misunderstanding of evolution theory, and a century of controversy. In addition, teachers are being pressured to introduce creationism, creation science, and other non-scientific views which are intended to weaken or eliminate the teaching of evolution." Q. Now, is there anything in that statement which would suggest to a science teacher that there is doubt about the occurrence of evolution? A. Nothing. Q. Are you aware of anything else in this document that would support such a view? A. No. Q. I want to focus a little bit on the second paragraph in the introduction, and it talks about teachers being pressured and the intimidation of science teachers. Do you know anything about that? A. Yes. I have talked with hundreds of teachers throughout North America, and a large percentage feel the pressure in various ways. Sometimes it's just media pressure, they might think they might get drawn into something that would occur, for example something like the Dover situation here. They feel that parents might not like evolution being taught in their classroom. Sometimes parents come directly in and talk to teachers. Some teachers feel pressure from their administration where administration says can you de-emphasize the teaching of evolution. We've had a parent or two or more dislike the idea of evolution being taught in the classroom. NSTA, this organization here that the statement is from, within the last six or seven months did a survey of its members, fifty thousand, over fifty thousand science teachers, and over -- well, approximately one-third, 31 percent I believe it was, said they felt some form of pressure for teaching creationism, non-scientific beliefs in the science classroom. So yes, we have a lot of that, and it's very unfortunate that science teachers feel pressured to de-emphasize something so important as evolution. Q. And this isn't pressure that's new on science teachers, is it? A. Oh, no. From the best we can tell it's been around for a long time. Q. And so how might this pressure -- and is this pressure from parents, or what are the sources of the pressure? A. Well, it's perceived from the teachers, and they -- sometimes it's from the parents, sometimes it's even from students. They notice a student or two may be emotionally upset, or they detect some emotional upset in the student when they talk about evolution but not other subjects in the biology curriculum. So there's pressure even from that direction, but direct pressure from parents, indirectly through administration, just teachers reading about this sort of stuff gets in the media and they can drawn into some sort of social controversy. It concerns them. Most science teachers don't go into teaching, the ones I'm aware of, thousands of them, don't go into science teaching to have a social fight. They go in because they want to turn kids on to science and have kids understand science better. So all of a sudden they're in sort of a, often a combative or at least perceive that it's going to be a combative situation, so they often take the road that has less friction, the non-combative route, and de-emphasize evolution. And many of them hold firm and teach evolution anyway and experience the discomforts of perceiving this pressure, real and perceived. Q. So the result is even if there's no school board policy in a lot of districts, the teaching of evolution is diluted because of all these social pressures? A. Yes. Q. Now, you made a statement that these same pressures don't attend other areas of science. A. Right. The teachers don't perceive any pressure against teaching, let's just say physics, trajectory. They don't feel pressure that there's going to be parents, a child being upset, administration coming in saying can you de-emphasize the trajectory portion of your physics course, right. Q. And it doesn't happen in any other aspect of science? A. Not to the extent -- evolution is special culturally. It's not special scientifically, it's another science, but it has a cultural aspect to it, and that's where the teacher feels this perceived pressure. Q. So evolution is different than other scientific theories? A. No, it's not different as a science. It's a science the same as any other science. It's just culturally different. Culture in general perceives evolution to be a different type of concept. Q. And much of that controversy is based in religious beliefs? A. Yes. Q. And you in fact spent a good deal of your professional career studying how the religious beliefs affect the students' learning and the interaction in the classroom between the teaching of evolution and these creationist beliefs? A. Yes. Q. We're going to come back to that in just a minute. Matt, if you might now highlight the declarations in this NST A statement? Dr. Alters, I want to these take these one at a time here, and could you read the first bullet statement, please? A. Yes. "Science curricula states science standards, and teachers should emphasize evolution in a manner commensurate with its importance as an underunifying concept in science and its overall explanatory power." Q. Do you agree with that? A. Yes. Q. And is that consistent with a position taken by every major scientific association? A. Yes. Q. Could you read the second bullet point, please? A. "Science teachers should not advocate any religious interpretations of nature and should be nonjudgmental about the personal beliefs of students." Q. Do you agree with that? A. Yes. Q. Have you in fact spent much of your career studying what they're talking about in that statement? A. Yes. I have done primarily over a thousand interviews with people concerning this very aspect. Q. So there is a right way and a wrong way, or a better or worse way to teach about evolution? A. Yes, absolutely. Q. And could you talk to us about that? A. Yes. There's many aspects, but I think the most fundamental is for a child to understand the difference between different ways of knowing, between a scientific way of knowing and a non-scientific way of knowing. Many students that bring into the classroom perceived problems with evolution because of their religious beliefs, whether they're accurate of their religious beliefs or not, they still often perceive that somehow evolution is against their religious beliefs. A teacher expressing how science has certain rules and that everything in science is tentative and is open to new data coming in, and that you can have, you can play the game of science and you can still have your religious faith, too. They ask and answer separate questions. Science doesn't answer religious questions, and most religions don't have any significant problem with evolution. And getting students to understand then the first place that evolution does not deny the existence of God. It says nothing about God. It's outside of the realm of science. So those two factors are fundamental. There's more, but those are fundamental, and those are hard to get students to understand that there's multiple ways of knowing. Most students have been raised and it's just a matter of maturation also as epistemological dualist, true/false, right/wrong, credit/no credit, you know. So which is right, you know, my religious belief or evolution? And so the biology teacher, by expressing to students and having them learn that science has certain rules, and these certain rules are what's in play here and you can still have your answer from religion, but we're going to play the game of science in here, and evolution and science in no way answers or attempts to answer whether there's a god or not, you go a long way if you can get students to understand that. Q. And would it be appropriate for a science teacher to say you have to believe in evolution? A. Well, no, that would be inappropriate. It's level of confidence. What we want -- I use the term belief not as a religious belief. I use the term belief as level of confidence, and we want students to understand the game, let's take it outside of evolution for a moment to mathematics. We want the child to understand the games of mathematics so that two plus two equals four, and to have a high confidence level that within the game of mathematics, following the rules of mathematics, the logic of mathematics, the rationale of mathematics, how the mathematical community works, that yes, it is logical that the best explanation is two plus two equals four. Now, if the student says for religious beliefs, the student says hey, I've got religious beliefs that says two plus two equals five, then the teacher should say, "I respect that." Q. So the same treatment should be given to a student who expresses some view opposing evolution in the classroom? A. I'm sorry? Q. So if a student says to a biology teacher for instance, you know, "I don't believe that we came from monkeys," the appropriate response from the science teacher is to be respectful and to do what? A. Of course this class does not entertain religious beliefs, does not detract from them, nor does it add to them. It does not advocate any religious belief. It's a science course. Q. And is that part of what you would consider good pedagogy? A. Absolutely. Q. Could you read the third bullet point, please? A. "Policy makers and administrators should not mandate policies requiring the teaching of creation science or related concepts such as so-called intelligent design, abrupt appearance, and arguments against evolution. Administrators also should support teachers against pressure to promote non-scientific views or to diminish or eliminate the study of evolution." Q. So does this statement from the National Science Teachers Association, the largest association of science teachers in the country and the world, takes a clear position on intelligent design? A. Absolutely. Q. And it says what? A. That intelligent design is not science and should not be taught in a science classroom. Q. I want to look for a moment at the last sentence in that third bullet point, "Administrators should support teachers against pressure to promote non-scientific views." Do you know why that is included in the statement? A. Yes. With all due respect to all administrators everywhere, administrators often come to teachers and would like to have less confrontation, less commotion at schools, and often they will ask biology teaches is there a way we can de-emphasize a little bit of this evolution or take some of the aspects that maybe are causing some of this concern with parents and/or students or religious leaders out of the curriculum, out of your teaching. And so NST A here is apparently attempting to say administrators should be doing the opposite. They should be supporting the teaching of science. Q. And that's because it's important to present evolution in as they say in the first bullet point to emphasize evolution in a manner commensurate with its importance as a unifying concept in science? A. Yes, and what it tells me as a science educator is that this is such a big problem the NST A had to come out and actually make this statement. This statement, I haven't seen this statement concerning, you know, areas outside of evolution. Again back to trajectory, I haven't seen administrators also should support teachers against pressure for people who want to de-emphasize trajectory. Q. If we could now go to the fourth bullet point, and if you could please read that? A. "Administrators and school boards should provide support to teachers as they review, adopt, and implement curricula that emphasize evolution. This should include professional development to assist teachers in teaching evolution in a comprehensive and professional manner." Q. And is that what you were just talking about a few moments ago about sort of the right way and the wrong way to teach evolution? A. Yes. And this bullet particularly goes to the point of teachers often have pedagogical days some places they call them, in servicing they call them at other places. Basically what that means is days in which teachers, they go to their local conference, maybe a regional conference, maybe even a national conference or something, supported by their administration to learn more about how to teach evolution. Q. And this would seem to support the notion that the teaching of evolution is different and because students have religious sensitivities that it may require additional professional training and support? A. Yes, it is. It has more of that possibility of perceived conflict than most other areas of science, if not all. Q. And do you in fact teach teachers that they need to seek support in learning how to deal sensitively with students' religious objections to evolution? A. Yes. Probably the most important point is to be sensitive to the students, for the teacher to understand that this will be different than teaching other things in their day. Q. If you could read the fifth declaration, please? A. "Parental and community involvement in establishing the goals of science education and the curriculum development process should be encourage and nurtured in our democratic society. However, the professional responsibility of science teachers and curriculum specialists to provide students with qualify science education should not be compromised by censorship, pseudo science, inconsistencies, faulty scholarship, or unconstitutional mandates." Q. So this talks about the importance of supporting the professionals, the science teachers within the school district? A. Yes. Q. And if you can read the last declaration, please? A. "Science textbooks shall emphasize evolution as a unifying concept. Publishers should not be required or volunteered to include disclaimers in textbooks that distort or misrepresent the methodology of science and the current body of knowledge concerning the nature and study of evolution." Q. Do you agree with that, Dr. Alters? A. Yes. Q. I'd like to highlight one other passage in this NST A statement. Matt, could you go to the legal issues highlight in the fourth paragraph? Dr. Alters, could you read into the record the highlighted passage, please? A. Yes. "Some legislators and policy makers continue attempts to distort the teaching of evolution through mandates that would require teachers to teach evolution as only a theory or that require a textbook or a lesson on evolution to be preceded by a disclaimer. Regardless of the legal status of these mandates, they are bad educational policy. Such policies have the effect of intimidating teachers, which may result in de-emphasis or omission of evolution. As a consequence, the public will only be further confused about the nature of scientific theories. Furthermore, if students learn less about evolution, scientific literacy itself will suffer." Q. So this says regardless of the legality of saying that evolution is only a theory, it's bad pedagogy? A. Yes. Q. You testified that the largest association of biology teachers is the National Association of Biology Teachers, NABT for short? A. Yes. Q. Do you know whether they've taken a statement on the teaching of evolution? A. Yes. Q. Matt, could you put up Exhibit 186, please? Dr. Alters, do you recognize what's been marked as Plaintiff's Exhibit 186? A. Yes. It's the NABT statement on the teaching of evolution. Q. And do you know when it was most recently updated? A. I think it's right on there, 2004, May. Q. And Matt, could you highlight -- Dr. Alters, if you can read from the NABT statement on the teaching of evolution, please? A. "Scientists have firmly established evolution as an important natural process. Experimentations, logical analysis, and evidence based revisions are procedures that clearly differentiate and separate science from other ways of knowing. Explanations or ways of knowing that invoke non-naturalistic or supernatural events or beings, whether called creation science, scientific creationism, intelligent design theory, young earth theory, or similar designations, are outside the realm of science and not part of a valid science curriculum. The selection of topics covered in a biology curriculum should accurately reflect the principles of biological science. Teaching biology in an effective and scientifically honest manner requires that evolution be taught in a standards based instructional framework with effective classroom discussions and laboratory experiences." Q. Do you find anything in this statement or anything else in the NABT statement that would support the teaching of intelligent design as science? A. No, to the contrary. Q. I'd like to direct your attention to one more teaching organization. Do you know whether the American Association of University Professors has recently taken a position on intelligent design? A. Yes, they have. June. Q. And that organization is known by the acronym AAUP? A. Yes. Q. Is that an organization of science teachers? A. It's an organization with 45,000 members in the United States of instructors at the college and university level. Q. But it includes more than just science professors? A. Yes. Q. Matt, could you put up Plaintiff's Exhibit 700, please? Do you recognize what's been marked as Plaintiff's Exhibit 700? A. Yes. Q. Matt, if you could highlight -- Dr. Alters, if you could read from the AAUP position statement? A. "The theory of evolution is all but universally accepted in the community of scholars, and has contributed immeasurably to our understanding of the natura world. The 91st annual meeting of the American Association of Universities Professors deplores efforts in local communities and by some state legislatures to require teachers in public schools to treat evolution as merely a hypothesis or speculation, untested and unsubstantiated by the methods of science, and to require them to make students aware of an intelligent design hypothesis to account for the origins of life. These initiatives not only violate the academic freedom of public school teachers, but can deny students an understanding of the overwhelming scientific consensus regarding evolution." Q. Are you aware of any science education associations that have taken a position supporting the teaching of intelligent design in science class? A. No. Q. Do these science education associations hold meetings and conferences? A. Sure. National, regional, some even smaller than that. Q. How often do these conferences take place? A. Well, the nationals are usually annually, and regionals generally annually, and the smaller groups sometimes multiple times throughout the year. Q. And I believe you testified that you've attended lots of these conferences, both national and regional? A. Yes. Q. Are you aware of any conferences, any science education conferences that promote teaching that the occurrence of evolution is not scientifically established? A. No. Q. Are you aware of any science education conferences where they teach that intelligent design should be taught in science education class? A. No. Q. Are you aware of any teacher conferences, not science teacher conferences, where they support the teaching of intelligent design? A. Yes. Q. And what organization would that be? A. Association of Christian Schools International. Q. They support the teaching of intelligent design in science? A. Well, they have sessions on it, yes. Q. I want to focus now on the Pennsylvania science standards. Matt, if you could put up Plaintiff's Exhibit 210, please? Do you recognize this, Dr. Alters? A. Yes. Q. And what is it? A. It's the academic standards for science and technology and environment and ecology. Q. Matt, if you could put up the introduction, the introductory page? And if you can highlight the first passage? And could you read that statement, please? A. "These standards describe what students should know and be able to do by the end of 4th, 7th, 10th, and 12th grade. In addition, these standards reflect the increasing complexity and sophistication that students are expected to achieve as they progress through school." Q. These are standards put out by the Pennsylvania Department of Education? A. Yes. Q. And are these similar to the standards found in other states? A. More or less. They're never identical, but -- Q. Matt, if you could go to page 4, and if you can highlight the first passage, "What is science?" This is the page entitled "Academic standards for science and technology." And Dr. Alters, if you could read the highlighted passage, please? A. "What is science? Any study of science includes the search for understanding the natural world and facts, principles, theories, and laws that have been verified by the scientific community, and are used to explain and predict natural phenomena and events." Q. And what is significant about this passage? A. Well, it's defining science for the rest of the standards right at the beginning. It's saying this is what science is, and then the rest of the science standards follow. Q. And what about words highlighted in yellow? A. That's crucial, because teachers cannot bring in something that hasn't been verified by the scientific community and teach it as a fundamental area of science to the students. It's saying no, that wouldn't be considered science according to the Pennsylvania state standards. Q. So under the standards it's important to teach materials that has actually been verified by the scientific community? A. Yes. Q. And in all of these science education associations they generally look for consensus in the scientific community -- A. Yes. Q. -- around, I'm sorry, around particular issues? A. Yes. Q. And it's only those issues around which there is a consensus that are taught in -- A. That's taught, and sometimes what is taught is genuine scientific debate that's going on within the scientific community. Q. But again that has to be a debate within the scientific community and not in culturally or among lay people? A. Correct. The scientific community verifies that that's a legitimate scientific, it's based what's going on within their community, yes. Q. And Matt, if you could go to the table of contents, please? And are these the topics that are covered by the Pennsylvania science standards? A. Yes. Q. And it includes biological sciences? A. Yes. Q. And it includes evolution? A. Yes. Q. Have you had an opportunity to review these standards? A. Yes, I have. Q. Is there anywhere in these standards suggested that evolution is a lesser theory than any other scientific theory? A. No. Q. Is there anywhere in these standards that suggests that the occurrence of evolution is debatable or controversial? A. No. Q. Is there any mention in the Pennsylvania science standards about intelligent design? A. No. Q. Now, the school district points to a particular section of the Pennsylvania science standards. Matt, if you could highlight section 3.212-A? Dr. Alters, if you could read for the record the highlighted provision, please? A. "Critically evaluate the status of existing theories, for example germ theory of disease, wave theory of light, classification of subatomic particles, theory of evolution, epidemiology of AIDS." Q. Does that language in any way support the teaching of intelligent design? A. No. Q. Does it support singling out evolution among all scientific theories for increased scrutiny? A. Absolutely not. The items that are mentioned there, as you can see there's a few, and those are just for example listings. Q. To your knowledge is there any support in any state or national science standards benchmarks or frameworks for teaching intelligent design as science? A. No. Q. Let's talk a little bit about textbooks. Are you familiar with high school biology textbooks? A. Yes. Q. Why is it that you're familiar with those? A. I've probably reviewed twenty, approximately twenty over the past ten years. Occasionally they're sent to me to be reviewed. Occasionally I like to look at them myself. Occasionally I look at them and then pass them on to to-be science teachers for their use to take a look at and so forth, and I've reviewed content in a couple of. In fact, the book, Ken Miller's high school textbook, Miller and Levine, I reviewed I think it was the late 1990's edition of it. I don't remember which edition. Q. Did you review that for a particular reason? A. I believe it was the evolution section. Q. Were you asked to review that by someone? A. It was probably the publisher. Q. And to give critical feedback? A. Yes. Q. Are you aware of any textbooks that promote the teaching of intelligent design? A. Yes. Q. High school textbooks? A. Yes. Q. And what is that textbook? A. Biology: A Search for Order and Complexity, about 400 pages, it's published by Christian Liberty University Press. Q. And do you know if that textbook is used in public schools? A. I've never hard of it being used in a public school, no. Q. And is that a creationist book? A. I would call it a creationist book, yes. Q. And you're familiar with it? A. Yes. Q. Are you aware of any other high school biology textbooks that teach intelligent design? A. No. There are other ones that teach evidence against evolution. The book I just mentioned certainly does. There's another high school biology textbook that I'm thinking of right now, it's approximately 700 pages long, it's titled Biology for Christian Schools, and it's published by Bob Jones University Press. Q. And that in fact teaches that evolution, the occurrence of evolution is not scientifically sound? A. Correct. Q. Are you aware of any other high school biology texts that teach evidence against evolution? A. Not that I can think of at the moment, no. Q. And they talk about the controversies within the scientific community over the means and mechanisms of how evolution works, but do not question the fact of evolution itself? A. Textbooks that are commonly used in public schools often discuss problems with the mechanisms. That's genuine scientific debate within the scientific community. They don't put up some form of evidence against the occurrence of evolution, because evolution is considered factual within the scientific community for a long time. The scientists no longer genuinely debate that issue. Q. Let's look at college textbooks. Are you familiar with college biology textbooks? A. Yes. Q. And why is it that you're familiar with those? A. I wrote one. Got to keep track of the competition. And I look at evolution textbooks for the college an university level also. Q. Are you aware of any college and university level biology textbooks that teach evidence against evolution? A. No. Q. Are you aware of any college and university level biology textbooks that support the teaching of intelligent design? A. No. Q. Do you know whether any of those textbooks even mention intelligent design? A. Many of them do mention intelligent design, but they mention it as in a way to teach students that it's not science. Q. And do you know whether these textbooks in fact say that intelligent design is not science? A. Oh, yes. Q. But you're not aware of any that would support teaching intelligent design as a scientific theory? A. Right. Q. Let's go to the Dover policy. Matt, if you can put up Plaintiff's Exhibit 124, please? Dr. Alters, you indicated that it was your opinion that reading this four-paragraph statement does not in fact promote good science education. Could you explain for us why not? A. It doesn't have good science education. It detracts from it. Let me go paragraph by paragraph. First of all there's the first paragraph, all four paragraphs, but particularly the first paragraph there's something unusual in a science class. Apparently now the students are going to hear, they're going to learn that the Pennsylvania academic standards requires students to learn about Darwin's theory of evolution. My reading of the state standards is that it requires them to learn a lot more science than just Darwin's theory of evolution, but for some reason this is told to the students and the students learn this for some special reason. Evolution must be a special science somehow I guess from this. This would be the message students would take away from it. It continues on and says eventually to take a standardized test of which evolution is part. Well, I imagine they take standardized tests on lots of areas of science, not just evolution. So it almost kind of signals to the students also, it's definitely a possibility, another aspect that we have to teach this stuff, you know. The other stuff we're just going to teach you, but now this one we have to say the Pennsylvania academic standards requires students to blah, blah, blah, and eventually take a test. We'd rather not do it, but Pennsylvania academic standards, you know, require students to do this. And that's the first paragraph. The second paragraph, because Darwin's theory is a theory. Well, that's quite confusing. Darwin's theory is a theory. We don't say, you know, because the physics law is a law or this physics theory is a theory. Yes, Darwin's theory is a theory, but the second theory being used, especially as understood by most 15-year-old students, most high school students in fact, is that a theory is nothing more than a half baked idea they had when they got up in the morning, a theory is something that Mulder uses on the "X Files" two times an episode to mean yeah, I just got a new idea. It's used in the media all the time to meet that, and I understand that very well. However, the first theory, if it's being used correctly here, is a scientific theory, which is quite different than the half baked idea. It has a lot of evidence behind it, an explanation of a natural phenomenon. So to juxtapose those two theories together is terrible and sends a wrong signal to the students. Oh, this scientific theory is only a theory, you know, this scientific theory is, this is one of those half baked ideas, okay? That's the first five or six words. "It continues to be tested as new evidence is discovered." Well, all theories all of science continue to be tested, all of science continued to be tested as new evidence is discovered. So why is evolution being singled out here as this to be told to the students? This is shaky, this is I believe most students would say that's because this Darwin's theory stuff appears to be shaky. It's only a theory, and you know, they're still testing it as new evidence is discovered. Well, all of science is that way. It continues, "This theory is not fact." Well, that's just dead wrong. Evolution is a theory and fact. It is both. It is a theory because it explains the diversity of life on the planet you understand. It's a fact because its confidence level is so extraordinarily high in the scientific community, they no longer debate it, they no longer publish papers, there's no significant body of literature in the scientific journals about saying the occurrence of evolution whether it happened or not. It's not there. It's considered factual in the scientific community, extraordinarily well accepted. So this is very inappropriate. Evolution is a factual theory. That would be an appropriate term to use that the student should be taught that, but in any case that sentence has many problems. "Gaps in the theory exist for which there is no evidence." Well, there's not evidence against the occurrence of evolution. The mechanisms of evolution of course as I mentioned before are being debated extensively, but this really doesn't tell us whether it's the occurrence of evolution or not. It's confusing to the students. It's not specific. So it's just kind of engendered that evolution in general, you know, this theory has gaps which there's no evidence. And notice when we get down to the next couple of paragraphs we'll notice that it's being juxtaposed with intelligent design. But when we get to intelligent design later in the couple of paragraphs, it doesn't say anything about gaps being in that idea of intelligent design. It only points out that evolution, you know, is only a theory, and it's got gaps for the theory exists for no evidence, so forth. So it's bad in that respect, too. Q. Dr. Alters, let me just stop you there for a minute. You said evolution. I don't actually see the term "evolution" in that second paragraph. The term they use is "Darwin's theory." Do you know from your research how students would perceive that term, do they equate that with evolution? A. They often equate Darwin with evolution, but I think first paragraph where it says Darwin's theory of evolution, and then it carries through the rest, I think they would associate it with that also. Q. How about that last sentence in the second paragraph? A. " A theory is defined as a well tested explanation that unifies a broad range of observations." That sounds pretty good. I might add in just for my own two cents of natural phenomena, but that sentence is probably the best one. Third paragraph, "Intelligent design is an explanation of the origin of life that differs from Darwin's view." Very confusing, and pretty much dead wrong I guess. Origin of life from Darwin's view, I don't know Darwin's view of the origin of life. Darwin didn't posit a scientific view out in public on the origin of life. He wrote a letter about a little warm pond scenario once, but I don't know what it is. Q. That's not in his book Origin of Species? A. No. I don't quite understand that, intelligent design is an explanation of the origin of life that differs from Darwin's view. Again it's wrong. It's basically sends a wrong signal to the students. "The reference book Of Panda and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves." Pandas and People advocates intelligent design. Intelligent design has been condemned by the national scientific associations, the most prestigious, the largest, the largest science teachers organizations, the largest science teacher biology organization, on and on and on, and now we're referring students to go seek it out as a supplemental book to take a look at in a science class when its central theme of intelligent design has been judged to be not science. So I have a lot of problems with that. Let's move on to the last paragraph, "With respect to any theory, students are encouraged to keep an open mind." Why are we putting this only with evolution? Well, I agree with the sentence, but why is it being juxtaposed only with evolution? And of course students are always encouraged to keep an open mind. It's very strange. "The school leaves the discussion of the origins of life to individual students and their families." Well, kind of interesting, the origin of life in a science class, in a biology class is science, and it almost sounds like the scientists and the science teachers can't be trusted to talk to students about the science of the origins of life. "As a standards driven district, class instruction focuses upon preparing students to achieve proficiency on standards based assessment." The last sentence again, doesn't that go for all of science at the school? And why is it being juxtaposed to evolution here? Again it makes it sound like we have to do this. We really don't want to teach you evolution, but as a standards driven district class instruction focuses on preparing students to achieve proficiency on standards based assessment, and since evolution is going to been on there, we have to teach this to you. Those are some of the problems I have with those four paragraphs. Q. And so in your view does this statement engender misconceptions in students about science education and science generally? A. Definitely. Q. Does this statement help prepare students for post secondary science education at major colleges and universities? A. To the contrary. If one would go to any college that teaches biology and evolution and brings up some of the things that are said in here, they would have to be corrected by the later university professor. I mean, I imagine at some point especially since intelligent design is mentioned in here, you know, bringing up supernatural causation in the middle of a science class in the university or a college biology, any science professor would probably, especially biology professors would ask where they learned their science, what school did they go to. Q. Could that be embarrassing to the students? A. I assume it could be quite embarrassing, yes. Q. So does reading this statement to students constitute good pedagogy? A. No. To the contrary it engenders misconceptions. This is exactly what we shouldn't be doing to students for multiple reasons, some of which I mentioned. Q. Does reading the statement require the readers to disregard findings of the scientific community? A. Could you repeat the question? Q. As you know, the teachers have refused to read this statement to the students. A. That's what I understand. Q. And in fact administrators come into the class and read the statement. I believe in your report, your expert report you talked about whether science teachers reading this would be required to disregard findings of the scientific community. Since the teachers aren't reading it, I'm asking you whoever is reading this, the administrator or teacher, does it require them to disregard findings of the scientific community? A. Yes. It's putting forth that this is an alternate scientific explanation, and it is not. So one would have to ignore the leading organizations in the United States, if not the world. Q. And similarly it requires the reader to disregard the recommendations of the national professional science teacher associations? A. Yes. Q. And would this require teachers, if they were reading it, to contradict their professional preparation and professional development? A. Yes. Their professional development as accurate science is part of it, to teach students accurate, not to engender needless misconceptions about science. Q. And is there a code of professional ethics among the science educators? A. I don't know if there's so much a code, but I can't think of anything worse for science education than to intentionally engender needless misconceptions. Q. The district claims that simply reading this four paragraph statement to students is not "teaching" intelligent design. Do you agree with that? A. No, it's definitely teaching. Q. Why is that? A. Teaching is the act of facilitating learning. Students have learned a whole lot from these four paragraphs. It's a mini lecture. Doesn't last long. I'm not saying it's good teaching, but it's teaching. A lot of us have been through our lives and have heard a lot of lectures, and what students could have learned from this, I'll quickly just go through a few. First of all they learn that Darwin's theory is only a theory and it continues to be tested. A theory is not fact. These by the way, many of them are misconceptions as I mentioned. That gaps exist in this theory. This is something by the way that they're just about, my understanding is this statement is read before they begin the evolution unit. So they're just about to enter the cornerstone of modern biology in their high school class, and this is read. All these misconceptions about it are learned by the student, or at least read to the student and these students can learn these things right before it begins. But to get back to this, they're learning that a theory is not a fact. They learn that what you're about to learn on evolution, there's gaps in this theory and which there's no evidence. They learn that, I like that last sentence in the second paragraph. They learn about this other thing they probably never heard about, at least most of the students probably have never heard about, something called intelligent design, and they learn that it's an explanation for the origin of life that somehow differs from this Darwin's view that they're about to learn about if they haven't already learned about it. They learn that there's this reference book, apparently some science reference book located somewhere the school has entitled Of Pandas and People, and it's available and you may want to go seek this out if you want to gain an understanding of what intelligent design involves. They've learned that. The fourth paragraph, they're learning that they're encouraged to keep an open mind, but apparently they're only encouraged during this time. We're about to begin evolution, so now keep a special open mind now. The school leaves the discussion of the origins of life to individual students and their families, again as I mentioned previously this signals to students they might learn that oh, that's a special science. That's something, that's science that has to be discussed with parents and not the science teacher. And then of course the final one as I discussed before, they might be reinforced in learning again the other, very beginning, that somehow it seems like what we're about to learn they really don't want to teach us, but you know, they have to do it anyway. Those are some of the things that the students can learn from learning this four paragraphs. I'm not saying all students will learn all of that, but it's certainly a possibility and there's certainly lots of students who will learn a lot of these, and I'm very concerned about the misconceptions that are engendered about this also. And yes, it's a form of teaching. Students will learn, somebody is reading to them, it is a lecture, it's in the Dover curriculum, it says lecture. This is a lecture. Q. So the fact that it's not part of an extended discussion doesn't mean that it's not teaching? A. It is teaching. Q. And it facilitates learning by students? A. Yes. It's not -- if students aren't learning things in this four paragraphs, then it begs the question obviously why is it being read to the student. Q. Now, what if any effect does the possibility for students being able to opt out or leave the room when this statement is read have on your opinion about this engenders misconceptions? A. Now comes another special thing about evolution. There's an opt out policy before the special statement that's read before the unit in evolution, the special science apparently, and now this is such an unusual occurrence that they can even opt out. Peer pressure may affect students to stay in or opt out. Students may talk at breaks, they may talk at lunch, they may talk at recess, they may talk after school about what happened when I was outside of the classroom. My parents wanted me to opt out during this time, but what happened in there, it's something special. Q. So if anything this highlights the unusualness of the teaching of evolution? A. It's unique. One of the things we try to do in science education is make our different teaching unique. It draws more attention to the student. The student pays more attention to something that's unique and not the norm. And this is certainly unusual, this reading of this paragraph and everything connected with it, the opt out and so forth. So this will probably draw more attention to it than the teacher just doing whatever they normally do in the classroom. Q. And how does the fact that the teachers are excused from the room and an administrator, and I believe it's been either the superintendent or the assistant superintendent, have come in and read the statement? A. Well, it just adds more novelty to it, makes it more unusual. Now we have a guest. Apparently an administrator comes in, the teacher exits the classroom during this time my understanding is. This creates an extreme novelty in the classroom, and all before an evolution unit. Q. So again it sort of heightens the specialness of evolution and dramatizes the promotion of intelligent design? A. It's an incredible introduction to the next unit in science, yes. Q. Now, Matt, if you can put up the entire document marked as Plaintiff's Exhibit 124? And if you could go to the second page? And if you could highlight paragraph 5? This is towards the end of the statement read to the students. Could you read for the record the highlighted passage, please? A. "As noted in the last paragraph of the statement, there will be no other discussion of the issue, and your teachers will not answer any questions on this issue. If you or your parents have any questions, they can contact Dr. Nilsen, Mr. Baksa, or Mr. Reidel." Q. What effect do you think that's going to have on the student? A. That it's a secret science, that somehow this science is secret. They can't ask their science teacher about this particular science. Everything else that goes on in the science class during the year in normal science classrooms they can ask the teacher could you elaborate on this, could you tell me more about this, could you tell me is it good, bad, explain to me, I don't quite understand this aspect. But apparently this is a secret science that they can only discuss it, they can only hear about the introduction of it, they can only be referred to this book about this secret science located somewhere on campus, and they can't ask their science teachers questions about this science. It's extraordinarily strange. Science if anything is extraordinarily open, and here we have this secret science that students apparently can't discuss with their science teacher. Q. So is it, is this pedagogically appropriate? A. It's about as bad as I could possibly think of. Q. To raise an issue with students and then tell them they can't discuss it? A. It's just, it's absurd to me that you would bring up a topic, say it counters the cornerstone of modern biology that you're about to be introduced to, here's a secret science, there's a book located somewhere else, go read the book, don't ask your science teachers any questions about this, and then tell the science teachers they're not to answer any questions about this secret science. I can't imagine anything worse. Q. The school district has made a number of arguments in support of what they're doing here, this intelligent design policy, and one of them is that it is appropriate to raise in students multiple ways of knowing. What's your reaction to that? A. Well, the multiple ways of knowing that would be raised are scientific ways of knowing versus non-scientific ways of knowing. This would be improper in a science classroom. The science teacher is trained in science. The science teacher is not trained in say religion. Science teachers aren't trained at the university on how to teach religion for example. They're trained on how to teach science, not non-science. So having multiple ways of knowing in a science classroom is not appropriate. Q. Another argument that the school district makes is that this simply promotes critical thinking. What's your reaction to that argument? A. Promotes critical -- it stifles critical thinking if anything. Again we go back to the secret science. You can't even have a critical discussion with your science teacher about it. It's something that shuts down any form of critical discussion whatsoever, and it's not science anyway. We shouldn't be critically analyzing this non-science in a science class. But anyway, it shuts down critical thinking in science because it's a secret, teachers can't discuss it. Q. And does it promote critical thinking about evolution? A. No. The paragraphs we read engenders misconceptions, and it would pit a non-scientific concept against a scientific concept. That wouldn't be proper for a science classroom. Q. And it also teaches that evolution is not a well established scientific theory? A. Correct. Q. So regardless of whether this promotes critical thinking, I mean ultimately it engenders misconceptions? A. It engenders misconceptions not only about evolution, but about the entire process of science, about the nature of science if you will. Q. And critical thinking in and of itself is not the goal. Critical thinking in terms of education, science education, is to promote proper understanding of subject matter? A. Yes. No, critical thinking is not the end goal. Let's take it back to mathematics for a moment. You want the child to critically analyze two plus two equals four. But in the end if they think that two plus two equals five, and they think they have good mathematical reasons for thinking two plus two equals five, then it's up to instructor to disabuse those misconceptions from the student. So in the end the student says oh, for good mathematical reasons two plus two does equal four, even though for non-scientific reasons I still think it equals five. Q. Another argument that the district has raised is that this simply encourages students to assume more responsibility in their learning and to play a more active part in constructing their own knowledge. What's your reaction to that? A. No, it engenders misconceptions again. It sends them off to find a book whose central thesis has been condemned again by the scientific associations and scientific education societies. No, it doesn't do anything such as that. Q. Two more arguments that the school district has raised, they say that this policy simply promotes a fuller understanding of the theory of evolution, including its limitations. Why doesn't this policy do that? A. No, it confuses the issue with the occurrence of evolution, again engenders many misconceptions, but here's another one that somehow evolution, the occurrence of evolution is being debated in the scientific community, that it's an ongoing rigorous debate within the scientific community, and that's just dead wrong. Q. So teaching students that there's a controversy over evolution would not be appropriate or good pedagogy either? A. No. Teaching students of course that they're still having, oh, we don't have all the answers in the process of evolution and the mechanisms of evolution is correct, but as far as the occurrence of evolution being still debated in the scientific community, no. Q. And one last argument is why isn't this permitted under the concept of academic freedom? A. I don't know a science teacher who would want to teach non-science in the science class. Academic freedom is not supposed to have science teachers teaching music in the class. Nothing against music, I love music, but that's not what the academic freedom is about, to teach things that aren't in the curriculum, completely outside the subject area in there is not that teacher's job. They're science teachers. They should be teaching science. Q. And is there any definition of academic freedom that would promote teaching students misconceptions? A. No. Q. I want to focus a little bit on the book Of Pandas and People. Are you familiar with that book? A. Yes. Q. Do you know whether any science education organizations have suggested criteria for evaluating science textbooks? A. Yes. The National Science Teachers Association, again the largest in the country if not the world, says that, or they say many things, but part of it is they suggest to adoption boards and so forth that they use accurate science as a criteria for the book. Q. And does Pandas meet that criterion? A. My understanding from scientists who have reviewed it, it does not. Its central theory that I have looked at, intelligent design, has been condemned by the scientific community. It breaks one of the ground rules of science, this intervention of some supernatural causation into it. The book is 1993 publication date. Most textbooks have a three to five year revision cycle. It's a very old book also. Q. And have you selected a passage out of Pandas as an example of why this is bad science textbook? A. Yes, page 99/100. Q. Could you highlight that please, Matt? And could you first read into the record the passage and then comment on it? A. "Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinct features already intact, fish with fins and scales, birds with feathers, beaks, and wings, etc." Q. And start with the first sentence there, why does that make it a bad science textbook? A. Right here it says that natural cause, that intelligent design gives an answer other than natural cause. It says intelligent design, because it does not give a natural cause explanation. Well, science is all about natural cause explanation. That's a ground rule of modern science. And so right here we have a problem concerning evolution and we have a problem concerning the nature of science. Q. How about the second sentence? A. We have something that isn't in any college textbook here, whether biology or evolution, and no secularly published biology high school textbook, we have something here that isn't in any scientific journals, something that is just, it itself is considered a misconception. On an exam for a students did fish appear abruptly with fins and scales intact, birds with feathers beaks and wings intact, true or false. False. But yet this engenders it as true, as another possibility within the scientific realm, and paleontologists as well as all evolutionary biologists as well as virtually all biologists will say no, that's wrong. But in any case, this is considered a misconception by the scientific community. I don't know why we would send students to read this as if it were accurate science. Q. And have you had an opportunity to review the guide to teachers? A. There is a note to teachers in the back of the book, and yes, I have taken a look at it. Q. Are these notes to teacher, are they a standard part of most science textbooks? A. Some yes, some no. Sometimes it's a separate little pamphlet or something to teachers, but this one is quite extensive. It's nine pages. Q. And generally what's the purpose of the note, of a note to teachers? A. Something that teachers might want to pay attention to, they might want to, a new way of possibly teaching a particular subject in there. It's mainly a note from the authors to the teacher informing them of something that the authors feel is important in general. Q. And is that what in fact the authors of Of Pandas have done with their note to teachers there? A. I don't know necessarily what their intent was, but there are words to the teachers in the back. Q. And have you identified some passages in the note to teachers that you found problematic? A. Yes, I have. Q. Matt, could you highlight the first passage, please? This is on page 153. If you could read the passage and then comment on it, please? A. Just as an aside, I notice that in this notes to teachers it's by apparently different authors, but the passage reads, "Controversy is not all bad. However, it gives teachers the opportunity to engage their students at a deeper level. Instead of filling young minds with discrete facts and vocabulary lists, teachers can show their students the rough and tumble of genuine scientific debate." Q. What's wrong with that? A. Well, genuine scientific debate, showing them intelligent design is not genuine scientific debate. It's not going on in the scientific community. There's no -- it's misrepresenting what's currently going on in the scientific community. Q. And who are the authors of this note to teachers? A. Sorry, too small. I can't read it. Looks like Hartwig and Meyer, Mark Hartwig and Steven Meyer. Q. Do you know who these individuals are? A. I've read some things by Meyer. The other individual no. I've heard the name. I don't know if I've read anything. Q. Could you highlight the second passage please, Matt? And this is on page 154 of Of Pandas and People, which I believe is Plaintiff's Exhibit 11. Could you read the highlighted passage and then comment on it, please? A. "The purpose of this text is to expose your students to the captivating and the controversial in the origins debate, to take them beyond the past scenarios offered in most basal texts, encourage them to grapple with ideas in a scientific manner. Pandas does this in two ways. First, it offers a clear, cogent discussion of the latest data relevant to biological origins. In the process it rectifies many serious errors found in several basal biology texts." Q. Let's start with the first paragraph. What's wrong with that? A. First thing, it engenders a misconception again that this is controversial in the scientific community, that somehow this is controversial. It's not. So that's the first misconception, and the second one that's highlighted in yellow there is "grapple with ideas in a scientific manner." If anything this is engendering students how to grapple with ideas in an unscientific manner. This is not the way science operates. Again supernatural causation is one of the main issues concerning this major problem, and it does the exact opposite. I wonder whether some teachers read this, certainly maybe not the teachers in Dover, but just in general maybe some teachers might read this and think oh, what am I missing that is controversial in the scientific community, I didn't know this, I'm going to go spend some time looking for this. Hey, to grapple with ideas in a scientific manner, that sounds like a good thing to do and so forth. I imagine most science teachers though who had a science background and had their science methods courses in universities will know better, but some may not. There might be some that may not, and they may send tracking this stuff down, only to learn that's what's in this text note to them is just wrong. Q. And how about the next paragraph? A. Latest date irrelevant, I mentioned this previously, the book is 1993. That's not considered an up to date biology book. Q. And is there a normal cycle that's used -- A. Generally three to five years for revision. Q. And that sounds like a short period of time to change biology textbooks every three years. A. Yeah, biology moves quickly. Q. And is that the same cycle that other sciences are on? A. It depends on the science. Physics, it depends on the science. Too many to discuss. Q. And Matt, could you put up the next passage that Dr. Alters has highlighted? And if you could read this passage and comment on it? A. "Second, Pandas offers a different interpretation of current biological evidence as opposed to most textbooks, which present the more or less orthodox neo-Darwinian accounts of how life originated and diversified. Pandas also presents a clear alternative which the authors call intelligent design throughout. The text evaluates how well different views can accommodate anomalous data within their respective interpretive frameworks. Pandas also makes the task of organizing your lessons and researching the scientific issues much easier. Pandas provides the scientific information you need and provides it in a way that coordinates well with your basal text." Q. What's wrong with this passage? A. Presenting a clear non-scientific alternative to the students. This is within the context of a science course. This statement was read to students in a science course to go seek out this text concerning an alternative scientific view, intelligent design, and here it says to the teachers that this book presents a clear alternative. Science teachers, if they're not up on this, may think oh, what am I missing here, there's an alternative to evolution here, what is it to the occurrence of evolution, and may seek spend time seeking out the answer to that, or may just say well, intelligent design, and they've learned something themselves. I'm concerned about the effect on students and I'm also concerned about the effect on some teachers. Q. And the one last provision that you've highlighted, this also is from page 154? A. "As students learn to weigh and sort competing views and become active participants in the clash of ideas, you may be surprised at the level of motivation and achievement displayed by your students." Yes, I think this might be quite accurate that their level of motivation, and I don't know about achievement, but motivation may go up. But it's all for the wrong reasons. Now many students are going to be recognizing an intelligent designer as being very God friendly, very religious friendly for them. In interviewing like I said over a thousand students this is something that automatically comes up with a lot of students, and now they have this motivation. They've never before in their science classes the teachers would always say that's a religious question, that's outside the game of science, the rules of science. That's outside. So go speak to your parents or your religious leader or something like that. Now all of a sudden we've told the students to seek out this book, the alternate view, and this alternate view to the perception of a student, and my perception, too, is very God friendly. It talks about an intelligent designer. Evolution doesn't ask or answer any of those questions. There may be, there may not be. It doesn't matter, because they only look at natural causes in evolution. Now we've got those two competing in possibly the minds of the student, the God friendly and the one that doesn't mention God at all, and now those two are going to, of course your motivation is going to go up. The student may feel they're defending their faith now in a science classroom. Q. Let's wrap up here and ask you a couple of questions. How does introducing intelligent design to students affect them in terms of learning science? A. Engenders great misconceptions about fundamental issues in science, the ground rules as I have stated. It engenders misconceptions about evolution itself, that somehow there's this controversy going on, that somehow evolution is a special theory, it's somehow less than other scientific theories. It's not as good, it's only a theory. It engenders numerous misconceptions. Q. And will that serve them well as they move on through life? A. The exact opposite. This is not what science teachers should be doing. Q. How does introducing intelligent design to students affect them in terms of religion? Does it bring religion into the classroom? A. This is probably my biggest concern out of all of it is this is a very emotionally charged issue for a lot of young people, and older people also, and now -- the science class was a, is a safe place for students for their religious beliefs. All religious beliefs should be respected in the school in general. Of course in the science classroom also. We don't deal with ultimate causes here in the science classroom. We don't deal with if there's a supernatural force behind it all. We don't deal with those questions. Whether there's supernatural interventions between all different types of mechanisms in science, we don't deal with that in here, the who or the how of the supernatural. We don't do that. So it's sort of a neutral place. It's hard enough with students bringing in all sorts of misconceptions about evolution in general and misconceptions perceived about their religious faith, bringing it into the science classroom and hearing about evolution, that's tough enough. That's tough enough for most students. Now what this policy is doing is saying there's this other scientific view that belongs, it belongs in the game of science, and it's the one that most students will perceive as God friendly. It has as intelligent designer, evolution doesn't. Now students are going to be in there discussing out in the playground, discussing in their class among themselves or whatever that the unit that they're now about to hear about, the evolution unit that's now coming up, is the one that's not God friendly. It's that one scientific theory that doesn't mention God. But this other so-called scientific theory, intelligent design, is God friendly, because there's a possibility that God has this other theory. What a terrible thing to do to kids. I meant to make them have to think about defending their religion before learning a scientific concept. How ridiculous. This is probably the worst thing I've ever heard of in science education. MR. WALCZAK: I have no further questions. THE COURT: One moment. All right, we'll pick up the cross examination this afternoon, but before we recess I'd like to talk about the deposition designations and the counterdesignation. Besides what we have from you on the deposition designations and the counters, have you reached any agreement in particular as to the counterdesignations sought by the defendants to your designations? MR. ROTHSCHILD: There's been quite a bit of exchange between both parties, and I've -- there's been changes to designations which require changes to counterdesignations. THE COURT: I don't need to know them in specific, but other than what I have -- let me ask it this way. How close are we to where you're going to be introducing what you've designated? MR. ROTHSCHILD: I think we're going to have a pretty full day today, so I don't think there will be a need for it, but there may be occasions to do it on Friday, and I would say on average with each witness that there's designations there's probably four to five passages, different lengths, where there are objections, really I think all objections, or almost all objections on behalf of the plaintiff, and what I think makes the most sense, and I think it was something you suggested before is we start reading them into the record, and where we hit a passage, you know, we'll read the designations, we'll read the counterdesignations. When we hit a passage where there's an objection to ask you to rule on it in sequence. I think that's the easiest way for you to -- THE COURT: And the likely objection would be to the counterdesignation? MR. ROTHSCHILD: Correct. THE COURT: As far as I can see from what you have submitted. MR. GILLEN: I agree with that, Your Honor. I think essentially what you have in front of you now seems to be the designations as they are now with the objections, and then in an effort to facilitate that process as Mr. Rothschild has referenced, I gave you our sense of why the counterdesignations are proper, it seems like at this point -- THE COURT: I can let you continue your work or attempts to work through it then, and we don't have to break in order to have me rule based on what we discussed, and I do recall that discussion, and as the counterdesignation comes up, as proposed by the defendants you'll interpose your objection if you haven't otherwise resolved it, and then I'll just rule on it as we get to that point. Is that satisfactory to everybody? MR. GILLEN: If that's fine with you, that's fine with me. THE COURT: It is with me, and I think it will keep it moving. I will tell you that if it aids your work that I would intend to be fairly liberal in allowing the defendant's suggested counterdesignation to come in. You should be guided by that inasmuch as this is a bench trial. I think the purpose of the rule and why we work hard at these in particular, when we work hard at these in particular, would be the occasion of a jury trial when you have to be extremely precise. I don't think that we have the same level of precision as mandated here inasmuch, and I think you'll agree with this, as this is a bench trial. So you ought not overplay, you're getting what I'm telling you, obviously you're nodding, but don't over play an objection to a counterdesignation unless it's something that you feel very, very strongly about, and then of course a well placed objection will trigger an appropriate ruling. All right? We will recess then until 1:35 this afternoon. We'll reconvene with the cross examination of this witness at that time. Thank you. (Morning session concluded at 12:05 p.m.) (End of Volume 1.) Kitzmiller v. Dover Area School District Trial transcript: Day 8 (October 12), PM Session, Part 1 THE COURT: We'll pick up then with Mr. Muise's cross-examination of Dr. Alters. MR. MUISE: Thank you, Your Honor. CROSS-EXAMINATION BY MR. MUISE: Q. Good afternoon, Dr. Alters. A. Good afternoon. Q. Sir, you're not a scientist. Correct? A. Correct. Q. And you've never actually taught biology in a public high school. Correct? A. Correct. Q. You have no specific training or experience with regard to the Pennsylvania standards for teaching science. Isn't that correct? A. Correct. Q. Sir, in your direct, you indicated that you coauthored a biology textbook, a college-level biology textbook entitled, Biology: Understanding Life. Is that correct? A. Yes. Q. And your coauthor was your wife? A. Yes. Q. And you and your wife hold Ph.D.s in education. Correct? A. Correct. Q. And neither you nor your wife are scientists. Correct? A. Correct. Q. Now, I gather from your testimony and what you've provided in your expert reports in this case that one of your principal concerns is with students bringing misconceptions to the science classroom. Is that accurate? A. Yes. Q. And you have studied students' misconceptions concerning evolution. Correct? A. Yes. Q. You haven't done, yourself, any studies as far as how students reach these misconceptions. Is that correct? A. I've done studies in interviewing thousands -- well over a thousand students in how they report learning those misconceptions. Q. But in terms of how they reach those misconceptions, you haven't done any studies on that? A. It's a technical point here. It's a little complex. To be able to do a study on how they would learn those misconceptions, it might be done something as follows: You might have to take a couple hundred students, randomly assign them into two groups, a control group, a test group. The control group would be evolution only. The test group would be evolution and intelligent design, say. And to be able to run that and then run it through and see what the difference is, most university professors that I'm aware of at most universities in North America that I'm aware of, certainly my universities, require you to go through a human subjects review board to approve your research ahead of time on human subjects. They ask in there, is there any deception of the students, and I would have to respond, yes, we're going to teach that intelligent design in the treatment group is an alternative scientific theory and teach it as science to the students. They then respond, do you predict that the good of the experiment will outweigh the detriment to the deception of the students, and I'd have to respond, no, I don't think so. So that type of research that you're requesting is pretty much considered unethical by ethical review boards for human subjects. Q. So, again, sir, the answer is that you have not done any studies as far as how students reach misconceptions? A. The type of experiment I just described, no, I haven't done any like that. MR. MUISE: May I approach, Your Honor? THE COURT: You may approach. BY MR. MUISE: Q. Sir, I'm handing you what is your deposition that you gave in this case on June 2nd, 2005, and I'd ask you to turn to Page 104, please. A. Okay. Q. Could you read the question beginning at Line 11 all the way through your answer at Line 14? A. (Reading:) Have you done any studies as far as how students reach misconceptions? No. Mr. White: Why don't we -- Q. That's fine, sir. That was through Line 14. Correct? A. Yes. Q. Was that a truthful answer you gave in your deposition? A. Yes. Q. Thank you, sir. Now, sir, in preparation for the opinions that you intend to offer or that you offered in this particular case, you have not been to the Dover science class. Correct? A. Correct. Q. And you've never attended or witnessed a ninth-grade biology class at Dover High School? A. Correct. Q. You have not spoken to any of the teachers at Dover High School regarding the policy at issue? A. I have not. Q. You have not spoken to any of the parents at Dover High School regarding the policy at issue? A. I have not. Q. You have not spoken to any of the students at Dover High School regarding the policy at issue? A. I have not. Q. You have not been in the ninth-grade biology class when the four-paragraph statement which we saw here on the screens was read to the students. Is that correct? A. That's correct. Q. You have not witnessed any students' reaction to hearing this four-paragraph statement that you testified to. Is that correct? A. That's correct. Q. So, sir, you have no knowledge concerning whether this four-paragraph statement, which takes approximately one minute to read, is read with the tone, the inflection, the facial expression, and the gestures that you employed today in court to read the statement. Is that correct? A. That's correct. Q. And, sir, you haven't interviewed any students who have heard this one-minute statement to find out what their views are with regard to that statement. Is that correct? A. Correct. Q. And you haven't interviewed any of the school board members -- A. No. Q. -- regarding the intention of this statement. Correct? A. Correct. Q. And you've never spoken with any of the administrators at Dover High School regarding this statement. Correct? A. Correct. Q. And, sir, you don't have any studies to show that the reading of this statement to students has been detrimental for their education. Correct? A. I don't have studies to show that any pseudoscience being taught to students in this manner is detrimental, correct. Q. And so the answer to that specific question with regard to the statement is a yes? A. Yes. Q. And you have also not spoken to any students or parents who have indicated that their education at Dover High School has been harmed by hearing this statement. Is that correct? A. Correct. Q. So you've never been to the Dover High School library. Correct? A. Correct. Q. You haven't witnessed any students reading the Pandas book. Is that correct? A. Correct. Q. You haven't interviewed any students regarding their reaction to the Pandas book. Is that correct? A. Correct. Q. And you don't even know, actually, if any students have even looked at the Pandas book. Is that correct? A. Correct. Q. Now, I believe you indicated already to my initial questions that you don't consider yourself an expert on state academic standards. Is that correct? A. Correct. Q. And with regard to this case, you were asked in your deposition whether you know what a school board's obligation is regarding standards in Pennsylvania, and you answered no. Is that accurate? A. Accurate. Q. And when you were asked, do you know in Pennsylvania how the school board would comply with the standards set forth in the State of Pennsylvania, you answered no. Is that correct? A. Correct. Q. And preparing your expert report in this case and prior to your deposition, you didn't compare the Dover curriculum with the state academic standards. Isn't that correct? A. Correct. Q. I believe you testified at your deposition that you just did a quick examination of the state standards concerning evolution and saw that there were some similarities between the Dover curriculum and the state standards. Is that accurate? A. Accurate. Q. So, sir, do you know if Darwin's theory of evolution will be taught in the ninth-grade biology class consistent with the Pennsylvania academic standards? A. I have no way of knowing that. Q. Sir, would it be fair to say that your expertise does not involve evaluating policy in the context of state academic standards? A. Correct. Q. Now, you testified regarding the state academic standards this morning, in particular, one of the sections your attorney pointed out to you where the standard indicates, quote, Critically evaluate the status of existing theories, end quote, and then they included a parenthetical with five theories, one of them being the theory of evolution. Do you recall that? A. Yes. Q. Do you consider that to be a valid educational standard? A. Yes, as long as one understands what it means in education. And what it means in education, the word "evaluate" is used 54 times in the Pennsylvania state standards just in the science section. And "evaluate" means two things for educators. One is to have the student hone their tools to be able to critically evaluate something. It doesn't mean trash something, it means critically evaluate. Two plus two equals four. We want them to critically evaluate and understand what are the mathematical reasons to come to four. So it's not just trashing. It's not saying, two plus two equals five and then the teacher lets that end up to be that way. The other aspect of it that educators appreciate when they see the word "evaluate," again, 54 times used in the Pennsylvania state standards just within the science section, is that "evaluate" also means so that the teacher can see how the student is thinking when they're critically evaluating something. So if the student then comes back and says, you know, there's good reason that two plus two equals five, the teacher then can dig in and try to diagnose the misconceptions that are either direct or underpin why the student thinks two plus two equals five. Q. That's a valid educational objective? A. Yes. Q. Sir, is it your understanding that Dover is a standards-driven district? A. That's my understanding. Q. Do you know what a standards-driven district means? A. I don't know what they mean by the term, no, but I can guess. Q. We don't need you to guess here, sir. Let me ask you if you understand this, that as a standards-driven district, the class instruction focuses on preparing students to achieve proficiency in the standard-based assessments. Do you have that understanding? A. Yes. Q. Did you get that understanding from reading the statement? A. I don't recall. Q. Is it your understanding that because Dover is a standards-driven district, students will not be tested on intelligent design? A. I don't know if it's because of that, but my understanding is they will not be, something I've read in the -- concerning the overall policy. I remember seeing that. Q. Again, it goes back to, I guess, your lack of understanding fully of what it means to be a standards-driven district? A. No, I think I just read it somewhere in the policy where it said that they'll not be tested on intelligent design. Q. But you don't know if that has anything to do with the fact that they're a standards-driven district? A. I imagine something could be a standards-driven district and not necessarily be examined on every subject that's within the standards. It would be an awful long exam. Q. Is it your understanding that the biology book that was purchased and that is being used in the ninth-grade biology class is the Miller and Levine 2004 version of Biology? A. Yes. Q. Have you had a chance at all to review that book? A. No. Q. Dr. Kenneth Miller, who is also an expert in this case, who coauthored that book, seemed to be rather fond of it. Do you have any reason to question his opinions about his book and what's covered in it? A. No special reason, no. Q. Do you have any reason to doubt that this book provides thorough coverage of Darwin's theory of evolution? A. No. Q. Do you have any reason to doubt that this biology book presents Darwin's theory of evolution in a manner that's consistent with this theory's status or standing in the scientific community? A. No. Q. So you do understand that Pandas is not a required textbook for the Dover biology class. Correct? A. Correct. Q. And I believe at the time you formed your opinions in this case and at your deposition, you didn't know whether this book was going to be kept in the science classroom or in the library. Is that -- A. Correct. Q. Sorry? A. Correct. Q. And have you come to learn that this book is being placed in the library? A. I believe I heard that somewhere, but I don't recall where. Q. Do you recall in your deposition you stated that if you lived in the area and sent a child to the Dover school, you would have no problem with Pandas being in the school library? A. I have no problem with virtually any book being in a school library or a public library where the local people and/or school or school board, et cetera, determines that these books will be in there. No, I have no problem with that. Q. That would include the Pandas book. Correct? A. Correct. Q. Sir, that statement that you read here today in court, are you aware that that statement was modified in June? A. Which statement is that? Q. That four-paragraph statement that you read that is being read to the students. A. Yes, I heard it was changed, but I don't recall to what. Q. Do you know if it was changed to indicate that Pandas was, in fact, going to be put in the library? A. No, I don't recall that. Q. Have you come to any understanding that the policy was changed to indicate that books in addition to Pandas are going to be placed in the library? A. Any books? Q. Books regarding intelligent design. A. I'm not following your question. Sorry. Q. Well, my question is regarding the revised statement. It was revised in June, as the evidence will demonstrate here. And I'm asking whether you, first of all, understood that it was revised to indicate that Pandas was going to actually be put in the school library, and I believe you testified you had heard something about that. Is that correct? A. Heard, read. MR. WALCZAK: I'm going to object. The witness already stated that he does not have a recollection of how the June statement was changed, and perhaps if Mr. Muise is going to continue to ask Dr. Alters questions, he could give him a copy of that statement. THE COURT: Well, he has him on cross. He doesn't have to give him a copy of the statement. But he seems to be rather vague about that. So you can -- MR. MUISE: I just want to see the understanding or knowledge that he has. Obviously it's going to go to how he formed his opinions in this case. THE COURT: Well, you may get some "I don't know" answers, but you don't have to show him the statement. So I'll overrule the objection to that extent. You can continue with your cross. BY MR. MUISE: Q. Do you have any understanding, sir, that the statement was modified to indicate that there were going to be books in addition to Pandas on intelligent design that will be placed in the library? A. No. Q. So it would be fair to say that you don't know whether or not any additional books are being placed in the library that might be critical of intelligent design. Is that accurate? A. That's accurate. Q. Sir, critical thinking is a legitimate pedagogical goal for science education, is it not? A. It is. Q. And education in the science classrooms in a public high school should encourage critical thinking? A. Yes. Q. It is good science pedagogy to encourage critical thinking? A. Yes. Q. And critical thinking includes being able to take a proposition, concept, and idea and be able to look at it from different points of view? A. Scientific concept, proposition, if we're talking about science education. I'm not an expert in music education or art, but within the realm of science education, as long as you preference it with science. Q. So critical thinking -- let me reask the question so we can have the record clear. Critical thinking includes being able to take a scientific proposition, concept, or idea and be able to look at it from different points of view? A. Different scientific points of view, yes. Q. A part of critical thinking is to question fundamental theories in science? A. Not trash them. It depends on what you mean by "question." Q. Sir, if you'd open your deposition to Page 175, please. A. Okay. Q. And if you'd read from Line 3 with the question down through and including Line 12, which is your answer to two questions. A. (Reading:) Is a part of critical thinking to the question fundamental -- is a part of critical thinking to question fundamental theories? Answer: I think critical thinking can be applied to all areas of science. How far do you want me to go? Q. Read the next question and answer, please. A. Does that include questioning fundamental theories in science? Yes. Q. Is that a truthful answer? A. Yes. Q. Would you consider the theory of evolution to be a fundamental theory in science? A. Evolutionary theory is more than just the theory of evolution. You have the occurrence of evolution and the mechanisms of evolution. But yes. Q. Sir, would you agree that critical thinking involves comparing equivalent ideas, scientific ideas, and comparing them with the evidence in some -- comparing them sometimes -- comparing sometimes misconceptions with the evidence? A. Yes. Q. You would agree that all things in science should be looked at critically? A. It might be a waste of time, but, yes, in principle, if one had that amount of time. Q. Would you agree that the purpose of a high school science course is not to train scientists but to contribute to the liberal education of students? A. Yes. Q. Now, we talked about misconceptions. You testified about it, and I had asked you about that being sort of a central focus of your testimony. Correct? A. Yes. Q. I want to explore a little bit more this idea of misconceptions. I believe on direct you indicated that you reviewed one of the 1990 versions of the Miller and Levine Biology textbook? A. Late 1990s. I don't recall the year. Q. Do you recall if it was the elephant book? A. I don't recall. Q. Well, sir, there's evidence in this case that the 1995 version of the Biology text coauthored by Dr. Miller stated the following: Quote, It is important to keep this concept in mind, evolution is random and undirected, end quote. Sir, is evolution random and undirected? A. It would be my position that would be outside the realm of science. I would consider that philosophy. Q. So if a student believed that this was a scientific claim, that would be a misconception? A. I believe so. Q. Would it be a misconception for a student in the ninth-grade biology class to believe that Darwin's theory of evolution is an absolute truth? A. We would never use the word "absolute truth." I don't agree with your statement. We don't use the word "truth" in science. Science is tentative. It's always open in principle to new corrections, new data coming in. I can't answer a question that has the word "truth" in it applied to science. MR. MUISE: May I approach the witness, Your Honor? THE COURT: You may. BY MR. MUISE: Q. Sir, I've handed you a copy that's been marked as Defendants' Exhibit 214, which is the Prentice Hall Biology book by Miller and Levine. I direct your attention to Page 15, please. A. Yes. Q. Can you see the beginning of the second full paragraph? If you could read for me the first sentence where it begins, A useful. A. A useful theory may become the dominant view among the majority of scientists, but no theory is considered absolute truth. Q. Do you agree with that statement? A. I wouldn't have used the word "absolute truth," but in principle, I agree with it, yes. Q. So in principle that statement -- A. The problem is that truth to most children who read this will think that means an absolute. It never changes, it will always be the truth forever. Science, in principle, is always open to new data coming in, and it changes. So I think the author here is trying to communicate to 15-year-olds. This isn't like the truth that you're used to where things stay the same all the time. Science is open to the new data coming in. Q. Does that statement create a misconception? A. I think possibly somewhere, maybe in the rest of the text or maybe with the biology teacher, they might talk about how "truth" is generally not used by scientists. The people who wrote this book are communicating and trying to teach children, 15-year-old children. We probably wouldn't find the "T" word in their scientific writing and journals, but we find the "T" word here in how they communicate using the language that 15-year-olds understand. That's what I think the authors are trying to do. So it may create. As you said before, we would have to do some experiments on this to see if it creates a -- I think it's reasonable to believe that it would not create a misconception among students. And I would hope that if a student started to use the word "truth" in the biology classroom, that is when the teacher could say, oh, but that's a misconception, we don't use that, and then explain why. Q. Well, placing this in the context of communicating to your 15-year-old ninth-grade biology student, in principle, would it be a misconception for a student in a ninth-grade biology class to believe that Darwin's theory of evolution was the absolute truth? A. Well, there are so many things wrong with that question. You have "believe," which you're going to have to define for me. And then we go back to the "absolute truth" again. "Believe" is defined various different ways. It's a level of confidence in most ways, is the word "believe." What level of confidence do you have in this? What level of confidence do you have concerning its absolute truth? That is one way. So if you reask your question, I'll try to do my best to answer it. Q. What if we change the word from "believe" to "understands"? A. Okay. Could you restate the question then? Q. Would it be a misconception for a student in a ninth-grade biology class to understand that Darwin's theory of evolution was a fact -- excuse me, Darwin's theory of evolution is an absolute truth? A. "Absolute truth," yes, used in the way a 15-year-old would understand it, that would be a misconception, yes. Q. In keeping with our 15-year-old understanding, because we are talking about a ninth-grade biology class, would it be a misconception for a student in a ninth-grade biology class to understand that Darwin's theory of evolution was a fact? A. No, it wouldn't be a misconception at all. It would be accurate. Q. So you would disagree then with Dr. Miller's opinion on that issue? A. I doubt we disagree, but you're stating that we do, so I imagine you'll point that out to me. Q. Well, if a student understood that science has answered all questions regarding the theory of evolution, would that be a misconception? A. Yes. Q. If a student believed that science has solved the origin of life question, would that be a misconception? A. Yes. Q. Sir, you would agree that all scientific theories are tentative? A. Yes. Q. Including Darwin's theory of evolution? A. Yes. Q. And to say that a theory is tentative means that as new information comes in, scientists should accept that new information and, if necessary, modify existing theories? A. Yes. Q. And that, again, would include Darwin's theory of evolution? A. Yes. Q. If a student understood that Darwin's theory of evolution was not tentative, would that be a misconception? A. Yes. Q. Would it be good science pedagogy to tell students that Darwin's theory of evolution continues to change as new data are gathered and new ways of thinking arise? A. If you're singling out evolution only and not saying that all of science does that, then that might be problematic, because what you might be engendering in students at the time is a misconception that somehow evolution is a special science, that it's not like the rest of science. So your question can be answered in two ways, yes and no, or I like better, maybe. Q. Sir, if you could turn to Page 386 in Defendants' Exhibit 214. And there's a subheading entitled, Strengths and Weaknesses of Evolutionary Theory. A. Yes. Q. If you look at the second full paragraph, could you please read the first sentence? A. (Reading:) Like any scientific theory, evolutionary theory continues to change as new data are gathered and new ways of thinking arise. Q. And, again, that's a statement from out of the Miller and Levine Biology textbook? A. Yes, within the context of the evolution chapter in the book, yes. Q. Does that statement create a misconception of students? A. Within the context of this chapter, within the context of reading this, I don't think so. Q. Do you know if there are any other theories that are addressed in this book that have a subheading entitled, Strengths and Weaknesses? A. I haven't read the book. Q. So the answer is no, you don't know? A. I don't know. I haven't read the book. Q. Would it be good science pedagogy to tell students that the fossil record is incomplete? A. That would be fine in the context of a discussion regarding the fossil record and evolution, yes. Q. Would you agree that Darwin's theory of evolution is incomplete? A. Darwin's theory of evolution is natural selection. Some parts of it, yeah, I'll go ahead and say yes. Q. So it would be a misconception for a ninth-grade biology student to believe otherwise? A. Probably. I would have to think about that one. That's a more complex question. Q. But right now your answer is "probably"? A. Yes. Q. Sir, I'm going to ask you if you agree with this National Science Education Standard. I believe it's listed as 1996c. Quote, In the areas where data or understanding are incomplete, such as the details of human evolution or questions surrounding global warming, new data may well lead to changes in current ideas or resolve current conflicts, end quote. Are you familiar with that standard? A. I'm not familiar with that quote, but I'm familiar with the National Science Education Standards, yes. Q. Well, would it be a misconception for a ninth-grade biology student to understand that scientists completely understand the details of human evolution? A. I don't know if scientists completely understand any area of science. Q. And that would include the details of human evolution? A. Of course. Q. Now, in your deposition you indicated that you do not like the word "gap" because it sounds like something is missing that naturally should be there? A. That was just a personal observation. It's not a word that I've thought about a lot. Q. Do you recall testifying as such in your deposition? A. I don't doubt at all that I did. I don't recall it, but I don't doubt it. Q. Well, would it be good science pedagogy to tell students that the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history? A. Could you repeat that? Q. Would it be good science pedagogy to tell students that the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history? A. I don't know if it is. I can't answer that question. Q. Do you know if that is an accurate statement, the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history? A. I don't know. I suspect it is, but I don't know. Q. You suspect that it's true? A. I suspect it's true. Q. If you suspect that it's true, would you suspect that it wouldn't create a misconception? A. My level of confidence is very low on my suspection concerning that, so I wouldn't bet much money on it. Q. Is there a reason why your confidence is low? A. I would have to think about it for a while, maybe even consult some scientists. Q. Well, maybe if you look at Page 425 in Defendants' Exhibit 214. A. 425? Q. Yes. A. Yes. Q. If you could read that first sentence under The Puzzle of Life's Origin on Page 425. A. (Reading:) A stew of organic molecules is a long way from a living cell, and the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history. Q. Are you more firm in your beliefs at this point? A. My confidence level has increased, yes. I understand that Ken Miller is an excellent scientist. Q. So, again, my question would be, is it good science pedagogy to tell students that the leap from nonlife to life is the greatest gap in the scientific hypotheses of Earth's early history? A. My confidence level has gone up from what it was previous to reading this, but it's still not up -- I would like to have some more evidence. Q. Is it proper science pedagogy to tell students that Darwin's theory is a well-tested explanation that unifies a broad range of observations? A. Yes. Q. Sir, you would acknowledge that there are weaknesses in the theory of evolution. Correct? A. Could you repeat the question, please? Q. Would you acknowledge that there are weaknesses in the theory of evolution? A. There are weaknesses in the mechanisms, the understanding of the mechanisms for evolution. I do not know of any evidence against the occurrence of evolution. Q. You've used that term "occurrence of evolution" quite a bit in your direct testimony. Correct? A. Yes. Q. Now, when you're referring to "occurrence of evolution," is that you're referring to the notion of change over time, that life has changed over time? A. Roughly, yes. Q. And you distinguish that from the mechanisms of evolution such as natural selection? A. Correct. Q. You would agree that we do not have overwhelming consensus yet on the mechanisms of evolution? A. Correct. Q. And so in your direct testimony when you were claiming that you weren't aware of any scientific organization or science textbook that indicated any controversy regarding the occurrence of evolution, you were referring to evolution in the sense of change over time. Correct? A. That evolution occurred, yes. Q. As opposed to the mechanisms of evolution such as natural selection. Correct? A. Correct. Q. Now, in your deposition, you claimed that the -- when you were asked questions about the strengths of the theory of evolution, you referred to the structural similarity in embryology as being one of the strengths of evolution. Is that correct? A. Yes. Q. When you were referring to the structural similarity in embryology, were you referring to the famous or infamous Haeckel embryos? A. No, just in general. Q. Are you familiar with the Haeckel embryos? A. I've heard some things about it, yes. Q. And those drawings have appeared in biology texts for many years? A. That's what I understand. Q. And also these drawings were later found out to be an actual fraud? A. That's what I understand, yes. Q. Should students be made aware of the fact that these drawings were a fraud? A. That would be a judgment call on the individual instructors or school district or whatever. It depends on if they have been brought up, it depends on if students brought them up, if they're used in textbooks. There are too many factors to consider there. I can't make a blanket statement on that. Q. Well, if students believe that those embryos were true, that would be a misconception, would it not? A. From my understanding of this, yes. I'm not an expert in science, and I'm not an expert on the Haeckel embryo history. Q. Sir, I want to explore a little bit your understanding of intelligent design as it relates to the opinions that you've offered in this case. Does intelligent design, from your perspective, require adherence to the claim that the earth is no older than 6,000 to 10,000 years? A. Not necessarily. Q. Does intelligent design require adherence to the six-day creation event, that is, a literal reading of the account in the Book of Genesis? A. Not my understanding, no. Q. Does intelligent design require adherence to the flood geology point of view advanced by creationists? A. No. Q. Is it your understanding that intelligent design requires the action of a supernatural creator? A. Yes. Q. Is it your understanding that intelligent design rules out all natural explanations for design? A. In my view, yes. Q. Sir, intelligent design does not depend on any religious faith. Correct? A. Correct. Q. Intelligent design is not dependent on the Bible to reach its conclusions. Correct? A. Correct. Q. Intelligent design is not dependent on sacred Scripture to reach its conclusions. Correct? A. Correct. Q. Intelligent design does not say who the designer was. Correct? A. Correct. Q. Is it your understanding that intelligent design disputes the occurrence of evolution as we just explored the definition of that term? A. It certainly does in Pandas and People, Page 99 to 100. Q. So it's your understanding of intelligent design that it disputes the claim that life has changed over time? A. You've taken the definition from the occurrence of evolution to change over time. I'm going to direct it right back to the occurrence of evolution. The Dover policy states that there's an alternative to the occurrence of evolution, Darwin's theory of evolution, and it's called intelligent design. So intelligent design is considered to be something alternative to the occurrence of evolution. Q. Well, let me ask you again then, how do you define "occurrence of evolution"? A. That evolution has occurred. Q. And what do you mean by "evolution"? A. Descent with modification. Q. Is that not the mechanism of evolution? A. No, that the earth is very old and that ancestry exists among all organisms on the planet, descent with modification. Q. You distinguish that from natural selection, though. Correct? A. Natural selection is one of the possible mechanisms for evolution, yes. Q. Was not natural selection Darwin's principal contribution to the theory of evolution? A. Yes. Q. So the fact that life has changed over time, meaning life as we see it today was not the same as life was in earlier stages of the earth's history, that understanding was known before actually Darwin offered the mechanism of natural selection. Is that true? A. Correct. Q. And so, again, when you're talking about the occurrence of evolution, you're not talking about natural selection, you're talking about this notion that life is not the same today as it was previously? A. Correct. Q. And it's your understanding that intelligent design refutes that aspect of evolution, the occurrence of evolution as you're claiming? A. It conflicts with the -- yes, the scientific explanation of the change in life on the planet, as opposed to intelligent design that states that some supernatural cause came in and changed life on the planet. Q. And, again, sir, I'm asking, though, is it your understanding that intelligent design refutes that life has changed over time on the planet? A. Evolution -- the occurrence of evolution and how it preceded is -- could you repeat your question? Q. We keep dancing around the occurrence of evolution, and I'm trying to just ask you if it's your opinion or your opinions are based on the understanding that intelligent design refutes the notion that life has changed over time, meaning life as it is today is different than -- A. Well, it's a tough question to answer because intelligent design posits that some life was inserted into along the history of life on the planet. Evolution has the history of life along the planet scientifically explained. Intelligent design inserts, by supernatural causation, life along the way. So that's why it's tough to answer that question, for me, at least. Q. Well, you used the term "history of life." Is it your understanding that intelligent design refutes the notion that there's a history of life on this planet? A. Well, when I read Page 99-100, for example, in Pandas, yes, it has a fish appearing with fins fully and birds with feathers and so forth, abrupt appearance. It's quite different than the history of evolution. Q. Sir, is intelligent design falsifiable? A. I have no idea. I'm not a philosopher of science. It's outside of my area of expertise. Q. Do you know if any biology teachers in secular colleges are providing students with supplemental materials that discuss intelligent design? A. I know of none. Q. Do you know if any biology teachers in secular colleges are discussing intelligent design in their classes? A. I've heard of some that have discussed it to point out that it's not science, to use it as a foil for the scientific method, scientific processes. Q. Do you consider Brown University a prestigious university? A. Yes. Q. Do you remember Cornell University a prestigious university? A. Yes. Q. Sir, you testified today, and I believe it's consistent with your deposition, that you believe one of the fundamental reasons that Pandas is not a science book is because of the ground rule, as you described it, of methodological naturalism? A. Yes. Q. Now, you described it as a ground rule. Is this a rule written somewhere in a science rule book? A. No. But when it's broken, you hear a lot about it. Q. Do you know if philosophers of science actually debate whether or not methodological naturalism is an appropriate way or appropriate gloss to apply on science? A. Again, to repeat, I'm not a philosopher of science, and I understand philosophers argue about everything. Q. Now, you said you reviewed the book Pandas and People, and, in fact, you put up a few select quotes up on the display here in court. Correct? A. No, no, that's not what I said. I probably received the book about ten years ago. I looked at it then. I haven't looked at it since until this trial came up. I pulled it off the shelf. I had a page marked, 99 to 100, with a Post-It note, I assume ten years ago. I read the note to the teachers recently as preparation for this and may have looked at the glossary. Q. That's all you looked at in preparation for your opinions today? A. Yes. Q. So you didn't look at the section that discusses the blood clotting system, for example? A. No, I didn't. Q. So you have no way of knowing whether that's an accurate scientific account? A. No. Q. And you also didn't look at the section dealing with the molecular clock problem? A. I didn't look at any other section in the book other than Page 99 and 100 concerning the abrupt appearance and the supernatural causation right in the middle of it. That was enough of the book for me. Q. So, again, you wouldn't have any reason to refute the scientific validity of the molecular clock claim made in the Pandas book. Correct? A. I haven't read it, so, yes, I can't comment on that. Q. Now, you referenced several statements that were made by various organizations, one by the National Academy of Sciences, another by the AAAS, a board resolution, a resolution by the NSTA, a resolution by the NABT, and a resolution by the AAUP, which were addressing the teaching of evolution, as well as intelligent design. Do you recall those various resolutions that you went through? A. I don't have them memorized, but I recall going through those, yes. Q. Now, is it accurate to say that those resolutions are policy statements? A. I don't know. Q. Well, do you know if any of those statements provide any experimental evidence to refute intelligent design? A. I don't know. Q. Have you read the entire statements or just those select portions that you displayed and testified to today? A. Some of the statements I read completely. Possibly other ones just sections. I don't recall. Q. So you don't recall the ones you read whether they cite any experimental evidence? A. I don't recall any. Q. Now, a focus of your research from your testimony, I gather, is on this perceived conflict between religion and evolution. Is that correct? A. Yes, the problems that students perceive that they have in learning evolution concerning primarily their religious faith. Q. And I take it from your testimony that there isn't a conflict between evolution and religious beliefs. Is that correct? A. No, what I said, the majority of religions that I'm familiar with have accommodations for evolution or don't seem to have much problems. Some sections of some religions certainly do have a direct conflict. Q. Would it be a misconception for a student to enter a science class with the understanding that science has disproven the existence of God? A. That would be a misconception about nature of science. Q. And for scientists to say otherwise would engender a misconception? A. I don't know if it would necessarily engender a misconception, but it is a misconception. Q. Would it create a misconception for students to conflate the strength of scientific evidence for the occurrence of evolution with the scientific evidence for the mechanism of evolution, specifically natural selection? A. They're two different things. One is the occurrence and one is the mechanisms. Q. And would it be a misconception for a student to conflate the evidence between the two? A. I don't think there's an exact wall between the two of them. I don't -- Q. Let me ask you this then, sir. Is there a difference in terms of the consensus within the scientific community regarding the evidentiary support for the occurrence of evolution compared with the evidentiary support for the mechanism of evolution, natural selection? A. Yes. Q. Would it be a misconception for the students to conflate those two? A. Yes. There are technical aspects involved in that that might be able to be parsed out with 15-year-olds. Part of it is extraordinarily complicated and far above my level. Q. So, for example, if a student believed that there was overwhelming scientific consensus for natural selection, that would be a misconception? A. Yes. That's natural selection being the only mechanism for evolution. I assume that's what you meant by the question. Q. That wasn't the point of my question. The point of my question was, you testified that the evidence, the scientific consensus for the occurrence of evolution -- I believe one of the terms you used was "overwhelming" or something along those lines. A. Sounds good. Q. Would you also agree that the scientific consensus for the evidence for natural selection is not overwhelming? A. The question is poorly put. The debates, as I understand them in the scientific community, are over what's the play of natural selection versus some of the other mechanisms, founder effect, genetic drift, you know, all these, what role do they play and what percentages and so forth and complex issues concerning them. So it's not just confidence level in natural selection, it's confidence level in what role does natural selection play in the mechanisms of evolution. Is it -- this is not how the scientists would put it, but is it the major, is it more minor, is it more in the middle involved, that sort of a question, not just do they have a high confidence level in natural selection. Q. But the debate over the mechanism of evolution is not the same as scientists debating the occurrence of evolution? A. Scientists don't debate the occurrence of evolution. That was put to bed long ago. They're debating the mechanisms and what interplay the various mechanisms have. Q. So if a student believes that the consensus for the mechanism of evolution was the same as the consensus for the occurrence of evolution, that would be a misconception? A. Yes. Q. Sir, you're a member of the National Center for Science Education? A. Yes. Q. I believe you're a member of the board? A. Yes. Just recently I was appointed, I believe in February. Q. I want to ask you a few more questions about methodological naturalism. Is it accurate to say that methodological naturalism is a convention that's imposed upon scientific inquiry? A. Imposed? What do you mean by "imposed"? Q. It's one that places limitations on scientific inquiry. A. This is how scientists do their work, as I understand it. When I pick up a science journal and look into it, I don't find supernatural causation in the scientific articles. I don't find it in the college textbooks. I don't find it in the high school textbooks. The most prestigious scientific organization, NAS, says no, AAAS says no, and NSTA, NABT say no. So I have a very high confidence level on this issue concerning that supernatural causation is not part of the ground rules of science and that methodological naturalism is. Q. And so, for example, it would impose a restriction on relying on a supernatural explanation for a particular question? A. I don't know about the word "restriction." I don't know if anywhere it's posted, Scientists, please do not use supernatural causes in your work. I don't know if that exists anywhere. The word "imposed" is -- I'm still having troubles understanding. I think scientists watch how science is done. They're trained in their universities, and then they go out, they probably postdoc under somebody, and then they carry on their scientific work. And in their journals and in their conferences it's all about methodological naturalism, it's all about not inserting supernatural causation into it. I don't know any federal funding source that funds -- or state funding sources that fund scientists to do work in supernatural causes in science. So from that extent, maybe there's some sort of implicit imposition of that rule. But other than that, you know, I don't think there's science police, if you will. Q. Are you aware that NASA is doing a -- is involved in a program for the search for extraterrestrial intelligence? A. SETI? Q. Yes. A. Yes. Q. Does that fall within the restrictions of methodological naturalism, that scientific inquiry? A. My understanding is it's very much scientific, and the American Association -- no, the American Astronomical Society came out, I think it was in August, I think it was in August, with a resolution condemning intelligent design and saying that supernatural causation should not be a part of science. I don't understand the SETI project. I haven't followed it whatsoever. Just what I've read in the paper a little bit. But I trust that their society, the American Astronomical Society, understands that very well. Q. Based on your understanding of SETI, is it accurate to say that ruling out intelligent -- the search for intelligent causes doesn't necessarily violate methodological naturalism? MR. WALCZAK: Your Honor, objection. I just heard the witness say he really doesn't know much about the SETI at all. MR. MUISE: And my question, Your Honor, was based on what his understanding was. He obviously has some understanding of it. He testified -- THE COURT: Well, his answer was that he knew of it, had heard of it. But I think it was quite clear to me, at least, that he didn't know anything more than the fact that it existed. I'll overrule the objection to that question, but I'm not going to let you press because I don't think he -- MR. MUISE: I'll move on, Your Honor. THE COURT: It's pretty clear that he doesn't know. MR. WALCZAK: Your Honor, we're also beyond the scope of his direct exam. We're beyond the scope of his expert report. THE COURT: That's arguably true. I'll give you latitude on this question, but we ought not go too far into this area. It's right on the borderline, I think, and I want to give you some latitude. Do you remember the question, sir? Probably not. THE WITNESS: I'm sorry. THE COURT: After all that dialogue. THE WITNESS: I'm sorry. THE COURT: Could we read it back, please. (Previous question read back.) THE WITNESS: My understanding of what SETI is doing is looking for radio waves from possible extraterrestrials and radio waves that we can manufacture and understand extraordinarily well all the time. I think that's quite different than intelligent design where it's some supernatural cause that we don't understand whatsoever. BY MR. MUISE: Q. Sir, are you aware of a theory that was advanced called directed panspermia? A. I heard of it in years past. Wasn't it Francis Crick came up with that? Q. Do you know if the hypothesis was that life was scattered here either intentionally or unintentionally by other planets? MR. WALCZAK: Your Honor, I'm going to object. We're outside not only the scope of his expert report and his testimony, but outside his expertise. Professor Alters has testified that he is not a scientist, he's a science educator, and all these questions are going to science. MR. MUISE: Your Honor, he said the fundamental reason why he believes that Pandas is not a science book is because it violates the ground rule of methodological naturalism. Methodological naturalism is very much at the core of his testimony, and I am exploring what his understanding of methodological naturalism is and how it might or might not apply in other areas which I think are very relevant to the case. THE COURT: Why don't you rephrase and make that clear, because I don't think that was clear from that question. So I'll sustain the objection to the form of the question. I think that's a fair area of inquiry, I agree with you, and I'll let you rephrase. BY MR. MUISE: Q. Sir, based on your understanding of this hypothesis of directed panspermia, does it violate this ground rule of methodological naturalism that you've been referring to? A. I don't know. I recall so little of that. It's a distant memory so many decades ago, I can't recall. Q. Are you familiar with the big bang theory? A. Yes, heard about it. Q. Your understanding of the big bang theory, does that violate the ground rule of methodological naturalism? A. I would assume not. The national academies talk about the big bang, and they talk about how supernatural causation should not be in science, so hopefully the right hand knows what the left hand is doing in all these national academies, national education academies. And in reading small things here and there about the physics of the big bang, I've never seen supernatural causation in anything I've read concerning it. Q. Sir, do you know who Nobel laureate Steven Weinberg is? A. Yes. Q. And he explained that his career in science was motivated by a desire to disprove religion. And I want to read you a quote that he made. Quote, I personally feel that the teaching of modern science is corrosive of religious belief and I'm all for that, exclamation point. One of the things that, in fact, has driven me in my life is the feeling that this is one of the great social functions of science, to free people from superstition, end quote. Do you agree with that statement? A. I think it's a very unfortunate statement. No. Q. And I take it then you would agree that he is not promoting good science pedagogy? A. Many scientists don't know much about education. They might be great scientists in their specific field, but they're not necessarily great educators. Q. Is it accurate to say that you should not conflate a scientific theory with a nonscientific idea? A. Could you repeat it? Q. Is it accurate to say that you shouldn't conflate a scientific theory with a nonscientific idea? A. A scientific theory is an explanation. What you said was a scientific explanation with a -- Q. Nonscientific idea. A. With a nonscientific idea. Yes, I think that would be bad. Q. Sir, scientists have made nonscientific claims about the theory of evolution. Correct? A. Scientists make -- they're humans. They make claims about a lot of things, yes. Q. Do you know who Richard Dawkins was? A. Is. Q. Is. A. He's still alive. Q. Yes. A. Yes, I know who he is. Q. Are you aware he made this comment, quote, Darwin made it possible to become an intellectually fulfilled atheist, unquote? A. Yes. It's an unfortunate statement. Q. And that was in the Blind Watchmaker? A. Is that where it's from? I don't know where the -- I read the Blind Watchmaker. If that's where it's from, I believe you. Q. That's a nonscientific claim. Correct? A. Yes. Q. Are you aware of anyone -- of any scientists claiming that trajectory allowed them to become a intellectually fulfilled atheist? A. No. Q. You've testified on direct that you knew fairly well the late Stephen J. Gould? A. I don't know if I would say I knew him fairly well, but I did know him. Q. He was a colleague of yours? A. Well, he was a fellow university professor. Q. And I believe he endorsed one of your books? A. Yes. Q. Now, in a book called Ever Since Darwin, Dr. Gould stated, quote, Before Darwin, we thought that a benevolent God had created us, unquote. Are you aware that he made that statement? A. No, I'm not aware that he made that statement, but subsequent to that book, he wrote a book on science and religion and said one doesn't answer the other's questions and they should live in mutual respect, that science doesn't take away anything from religion. Q. With regard to the quote that I read to you, sir, "Before Darwin, we thought that a benevolent God had created us," that would be a nonscientific claim. Correct? A. It sounds like a history of science claim to me, which, again, is outside of my expertise. Q. Have you ever heard a scientist make such a claim about the wave theory of light, for example? A. What's the statement again? Q. "Before Darwin, we thought that a benevolent God had created us." A. Not about a wave theory. Many other areas of science, though. Only God could make a tree. Q. Well, by making that statement, wouldn't Dr. Gould be contributing to the misconceptions that you've been trying to rid, it appears, in your career? A. Occasionally scientists contribute to students' misconceptions, yes. Q. And this was the scientist that endorsed your particular book? A. Oh, I'm not saying that that statement is necessarily a misconception. I'm just stating that if it is a misconception, that scientists commonly make misconceptions and conflate nonscience with science when they're speaking or writing in books. Q. Do you know who the late George Gaylord Simpson was? A. Yes. Q. An evolutionary biologist? A. Yes. Did a lot of work on tempo and mode of evolution. Q. He wrote a book called, The Meaning of Evolution, and in this book, he said this quote: Man is the result of a purposeless and materialistic process that did not have him in mind. He was not planned, end quote. Is that a scientific claim? A. Could you read it one more time, please? Q. Man is the result of a purposeless and materialistic process that did not have him in mind. He was not planned. A. To me that's not a scientific statement. Q. Did you ever hear a scientist make such a claim in the context of discussing trajectory? A. No. Q. Is it your testimony that intelligent design is being taught to the students because the statement is being read to them? A. During the mini lecture that they receive, yes, it's being taught in the Dover curriculum, and it's even -- the word "lecture" is even there. Q. If the statement was handed out to the students for them to read on their own, would it still satisfy the teaching definition that you've used? A. Sure. The authors who wrote it are teaching the students that. Q. I believe you testified that prior to hearing this statement, it's your opinion that students would probably have no idea what the word "intelligent design" means? A. No, I think what I said was that most students probably wouldn't. I have no idea that -- there could be five or ten students who learned it in church, came into the classroom and then hear intelligent design again in the science classroom. Q. Do you have any reason to believe that the concepts of intelligent design are being taught in the classroom? A. Well, yes, there certainly was, the concept that it's an alternate scientific theory. And intelligent design's claim is that somehow evolution is insufficient, has gaps and problems, and, ergo, that supernatural causation has to come in and be inserted in that point is implicit in that four paragraphs. There are gaps and weaknesses or gaps and problems with evolution theory and that the alternate theory comes along and that's intelligent design. The bashing happens with evolution. It's in that four paragraphs. It's evolution that's only a theory, it's evolution that has the gaps and problems. And then you go down to intelligent design, it doesn't mention any of intelligent design's gaps or problems or that it's just a theory. So, yes, I think they're learning a lot from that mini lecture, or potentially could learn a lot from that mini lecture. Q. They also learn that because Darwin's theory is a theory, it is a well-tested explanation that unifies a broad range of observations. Correct? A. I think that's the best sentence out of the four paragraphs, as I stated previously. Q. Sir, a science classroom in a public school is a forum for inquiry. Correct? A. Sure. Q. I'm sorry? A. Sure. Q. That would be a yes? A. I'm sorry, yes. Q. Now, you testified on direct about the -- I believe you described it as a special opt-out policy. A. I don't remember using those words, but I remember we talked about the students can opt out from hearing the statement. Q. Is it your understanding that the Dover School District has a very broad opt-out policy that would allow a student to opt out of the entire section on evolution if they wanted to? A. Well, that's unfortunate, but I was not aware of that, no. Q. Was it your understanding that they only had a special opt-out that dealt just with this one-minute statement? A. I hadn't given it any thought. Q. Would you agree that there's a genuine scientific debate regarding the mechanisms of evolution? A. That's what the scientific community reports. MR. MUISE: No further questions, Your Honor. THE COURT: All right. Thank you, Mr. Muise. Redirect, Mr. Walczak. MR. WALCZAK: Just a couple of areas. REDIRECT EXAMINATION BY MR. WALCZAK: Q. Dr. Alters, Mr. Muise asked you a few questions, and you seemed tentative in your answers. For instance, he asked you about the origin of -- A. I'm having trouble hearing you. Sorry. Q. I'm sorry. Mr. Muise asked you some questions, and you seemed tentative in your answers. For instance, he asked you about the origin of life, and you seemed uncertain about that answer. A. Well, there's definitely a scientific explanation and various scientific explanations concerning the origin of life. Q. He also asked you about some of the science contained in Pandas. Do you recall that? A. Yes. Q. You're not a scientist? A. No. Q. And you don't claim to be a scientist? A. No. Q. Your expertise is in science education? A. Correct. Q. And so whether it's good or bad science, you take your cue from the scientific community? A. Absolutely. I would hope all science educators do. Q. So you don't make these independent determinations on whether it's good or bad science, that's done by the scientific community? A. Correct. Q. And science educators simply want to report accurately what the scientific community is discussing at the time? A. Correct. Q. And the positions taken by the scientific community? A. Correct. Q. Matt, could you put up Plaintiffs' Exhibit -- I believe it's 131. Mr. Muise asked you about a change to the four-paragraph statement, and you weren't quite sure what the changes were. A. Correct. Q. So the statement I showed you on direct exam was the one read to students in January. A. Okay. Q. What we've put up here, Plaintiffs' Exhibit 131, is the statement that was read to students, I believe it was in June whenever students were being taught evolution in the second semester. Could you, Matt, highlight the four-paragraph statement. Now, Dr. Alters, let me just represent to you that as best I understand it, the only change made from the January to the June statement is in the third paragraph. And I don't know, Matt, are you in a position to pull up that paragraph from January? So I believe the top statement highlighted is from Exhibit 124, the January statement. That same paragraph highlighted below is from the June statement. Do you see the changes made between those two statements, Dr. Alters? A. Yes. Apparently what's been inserted is "in the library along with other resources," yes. Q. Does this change to the statement in any way alter your opinion that this is poor pedagogy and misleads students about science? A. I think it makes it worse. Q. Why is that? A. Well, now the sentence reads, The reference book Of Pandas and People is available in the library, along with other resources for students who might be interested in gaining an understanding of what intelligent design actually involves. It sounds like now there's even more books for this nonscience that was read in the science classroom to go check out, apparently to improve their understanding of science, even though they're not science. It makes it worse. If I read that and I think if a 15-year-old heard that -- it's right in between -- the previous sentence is talking about intelligent design. The following sentence is talking about intelligent design. And what's squeezed in between is, The reference book Of Pandas and People is available in the library along with other resources for students who might be interested, blah, blah, blah. So I think it made it worse. I think it makes it sound like there are lots of resources the students should go seek out concerning intelligent design. Q. So regardless of what books may actually be in the library, they don't identify anywhere in the statement what those books are? A. No. Q. And you're saying that the reasonable interpretation of this is that, oh, there are lots of books now to support intelligent design? A. That's how it reads to me. Q. I want to clarify one last -- what seemed to be a little point of confusion. Mr. Muise was asking you about consensus in the scientific community about the occurrence of evolution and the theory of evolution, and I think one of the things that Mr. Muise was trying to get you to say is that there is not overwhelming support in the scientific community for the mechanism of natural selection. Do you believe that there is overwhelming support in the scientific community that natural selection is one of the mechanisms of change? A. Yes, there is. The discussions, as I understand them in the scientific community, are among natural selection's relative role compared to other mechanisms of evolution. Q. And natural selection was really the innovation, if that's the right word, that Darwin brought to the science? A. Yes. Darwin used the word "theory" correctly. It's an explanation. So it's evolution, and what's the theory, what's the explanation? Natural selection is what he posited. Q. And is it your understanding that science, in the 150 years since Darwin, has built upon his findings and has really confirmed that natural selection is one of the evolutionary processes? A. That's what I understand the scientists reporting to me, yes. MR. WALCZAK: I have no further questions. MR. MUISE: Recross, Your Honor? THE COURT: Recross. RECROSS-EXAMINATION BY MR. MUISE: Q. Dr. Alters, the other resources -- A. Yes. Q. -- that are referenced in the second version of the statement, do you see that, sir? A. Yes. Q. If I represent to you that some of these other resources are actually books written by experts who have testified in this case on behalf of plaintiffs, would that change your opinion? A. Change my opinion of what? Q. Well, you offered an opinion, you thought that this actually made this statement more detrimental. A. Yes, but what you just told me isn't being read to the students. Q. So it makes no difference to you then what the resources are in the library that the students are directed to? A. Okay, now I have two problems with the sentence. The first problem is what I just stated, that now the students think there are more resources. Now I have another problem with it that apparently you're going to have resources arguing that the other resource, Pandas and People, is not science. So now we've said there's this alternate scientific theory, and now you're sending them, I guess, to the -- yes, to the library to reference books that will say it's not science, even though an administrator at the school has said it's science by reading and giving this mini lecture to them. Now I'm even more confused. I'm confused as an educator, and I think the teachers will be confused, and I think the students will be confused. So, yes, it's worse. MR. MUISE: No further questions. THE COURT: All right. This will be an appropriate time for us to break after we take the exhibits. Let's do the exhibits before we adjourn. Plaintiffs' 182 is -- Dr. Alters, you may step down. Thank you. THE WITNESS: Thank you. THE COURT: We have Dr. Alters' CV. P212 is the Defending Evolution text. P192 and P198 are already in. P183 is the NSTA statement on teaching evolution. P186 is the NSTA position statement on teaching evolution. P700 is teaching evolution. P210 is already in. So we have P182, P212, P183, P186, and P700. And, Mr. Walczak, your pleasure with respect to those? MR. WALCZAK: We would move all of those exhibits. THE COURT: Mr. Muise? MR. MUISE: No objections, Your Honor. THE COURT: All right. Then all those are admitted. On redirect we have P131, which is the revised statement. That may be in. I'm not sure. I don't show it as in, though. Mr. Walczak, do you want to move P131 in? I don't show it as being in, but it may be. That is the revised statement that you just referred to that you put up. MR. WALCZAK: If it's not in, this seems like an opportune time to move it in. MR. GILLEN: It should be in, Your Honor. THE COURT: I'm thinking it is, but we didn't show it as -- MR. WALCZAK: I'm being told it was moved in on September 27th. THE COURT: That memory is better than mine, and I'll accept it. So we'll note that it's in, and if it's not in, it will go in with this witness, we'll stand corrected. I don't have any other exhibits, and I don't have any exhibits on cross. Mr. Muise, any exhibits that I'm not aware of? MR. MUISE: Your Honor, the only thing we referenced was the Biology book. THE COURT: Which is already in, I think. Well, I don't know if it's in, but it was referred to. You don't want to move that in, do you? MR. MUISE: Not at this time. MR. WALCZAK: Your Honor, we'd just clarify that 212, we'd move the entire book into evidence. THE COURT: That was the sense of what I thought you were doing. You don't object to that, do you? MR. MUISE: No, Your Honor. THE COURT: The entire book is in because I don't have an excerpt noted. All right. Anything further before we recess from counsel? MR. GILLEN: No, Your Honor. MR. ROTHSCHILD: One more thing I wanted to raise, Your Honor, if this is a good time. We had requested last week that Dr. Forrest's two reports and what I'll call the extra exhibits that she didn't testify about be moved into evidence for the purposes of the record on the motion in limine, both qualifications and methodology. MR. GILLEN: Your Honor, we've given it a lot of thought, and I think for the record we're going to object, for the simple reason that the whole scope of that material -- as you know, we tried to work out the presentation of the witness through the plaintiffs and then voir dire. Essentially it seems like it creates the risk, from our standpoint, of vastly expanding the amount of material that can be relied on for her expertise and qualifications, whereas the questioning didn't reach all of those and in some points would have. THE COURT: Well, let me ask you this. If you have an appellate issue with respect to her testimony as an expert, how are you going to argue it if you don't have the report in? MR. GILLEN: Well, it would seem like the proffer is the typical way in which it's done. This is rather unusual to try and get in the reports, which are generally hearsay, to buttress that. And that's my concern at this point, which is, there's a whole bunch of additional material that's going to be added to support the proffer that was not -- THE COURT: Well, as I said last week, I assure you that if I would admit it, I'm not admitting it for my consideration. I'll take her testimony on the record as I allowed it over some objections. I think, Mr. Rothschild, that it is more helpful to the defense, conceivably, under most circumstances I can think of, to have the whole report in. But if it's only for appellate review and in the event of a determination it's adverse to the defense, in that situation I can't see where it necessarily helps the plaintiffs in an event that there's a determination adverse to the plaintiffs because she testified. And I don't think that's going to be necessarily an issue in that event. You might want to give that some more thought. And as I said, I will accept a stipulation, if you want to craft a stipulation to protect yourself. To be fair, you might not have had enough time to think about a stipulation. If you want to -- and I'll accept if you don't want to enter a stipulation and you want to object to it. That's fine, and I'll make a ruling. But give it a little bit more thought, because with a stipulation that it is not for the Court's consideration at this level, you know, you might want it in there. Your appellate record is what it is. I understand you say you're limited to the proffer, but your argument went beyond the proffer. Your argument went to what's in her record or what's in -- not what's in the record, what's in her report, excuse me. You might give that some thought. MR. ROTHSCHILD: Your Honor, I mean, it seems like the way they have characterized their argument is, look, she's just picking out a few quotes that are supportive of her viewpoint, and what we want to show is her methodology which is reflected in the book, which is already in evidence, and the report, which encompasses quite a bit of information -- THE COURT: Well, but that could be problematic, too. That may go too far. I think, to respond to what Mr. Gillen is saying, the one thing that you're going to have to be careful about is, you know, your lips are sealed and you've estopped any argument that you're going to make based upon what's in that report if you don't let it in the record. You are, indeed, restricted to the proffer. Now, maybe you've thought about that and that's what you want to do. MR. GILLEN: No, actually, Your Honor, the way you've put it to me today, it does warrant further consideration. Let me see if I grasp your mind on this. What you're saying is, for the purpose of your decision to admit her, your understanding is that that decision is based on the proffer and the voir dire and cross. Am I correct? THE COURT: Yes, and not the report itself. The report was considered by me for the purpose of ruling on the motion in limine. Once we got beyond that -- MR. GILLEN: Okay. Thank you, Your Honor. Let me give it a little more thought in light of what you suggested, and perhaps we can reach an accommodation. THE COURT: Again, as I've reminded you, and it's not to insult your intelligence, you all know this, but it's a bench trial, and I'm perfectly capable of setting that aside for the purpose of my ruling in this case, and you're simply making it a part of the record for whatever you may want to do. I mean, we can postulate, you know, to the end of the day about who might need it for what, but if I'm not going to use it and if you have a stipulation that I'm not going to use it for my determination, I don't know why it creates a problem. And it leaves both sides free to argue on another day and another time and another court, if that's necessary, with respect to what's in the report. There's not such urgency that we have to make this determination now. MR. ROTHSCHILD: Your Honor, I just want to make clear that what we're proposing is not simply the admission of the report, but also the support for her report, meaning that there were many exhibits, many of which have been already admitted through her direct testimony, but there are also other exhibits that were the corpus that she based her opinion on. THE COURT: Well, and again, if you've got to argue in another tribunal that there were, for example, erroneous rulings as it related to letting hearsay in, which is certainly an argument that you made, a timely objection, then I don't know how you're going to do that if you don't have at least some part of the report, if not all of it, and the documents. You're going to argue in a vacuum. And it seems to me you may want to think about that. MR. GILLEN: You have given me reason for thought, Your Honor, and I'd like another opportunity to revisit that issue with plaintiffs' counsel. THE COURT: That's fine. And I'll just rely on you to -- either of you or any of you to bring that up at a later point in time. We'll tie up the loose end. I'm sure somebody will remind me. I have some matters I have to attend to. Let's take about a 25-minute break at this point so I can do some things I need to do, and we'll reconvene at 3:25. We'll be in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 8 (October 12), PM Session, Part 2 THE COURT: We'll take our next witness. MR. WALCZAK: The plaintiffs call Cindy Sneath. CYNTHIA SNEATH, called as a witness, having been duly sworn or affirmed, testified as follows: THE CLERK: State your name and spell your name for the record. THE WITNESS: My name is Cynthia Sneath, C-y-n-t-h-i-a, S-n-e-a-t-h. DIRECT EXAMINATION BY MR. WALCZAK: Q. Good morning. A. Hi. Q. Please state your name. A. Cynthia Sneath. Q. And are you a plaintiff in this lawsuit? A. Yes, I am. Q. And you live in Dover? A. Yes, I do. Q. How long have you lived there? A. Since 1999. Q. And are you married? A. Yes, I am. Q. Do you have children? A. Two. Q. How old are your children? A. Seven and four. Q. Boys or girls? A. Boys. Q. Are either of them enrolled in the Dover Area School District? A. Yeah. My oldest goes to Weiglestown Elementary. Q. What grade is he in? A. Second. Q. And do you have any plans to leave the Dover Area School District? A. No. Q. Could you briefly tell us your educational background? A. Graduated high school, diploma, life lessons, hopefully a dose of common sense. Q. And are you employed outside the home? A. Yes. Q. And what do you do? A. My husband and I own a small business. I'm vice president. Q. What kind of business is that? A. Appliance repair and installations. Q. And do you have any particular background in science? A. No. Q. Do you have a personal interest in science? A. Not personally, no. You know, I have an interest for my son, who actually shows a great interest in science. Q. And which child is that? A. My second-grader, my seven-year-old. Q. And why do you say he shows a great interest? A. Many reasons. You know, don't get him started on talking about the NASA space shuttle program. I mean, just everything he does is very science-oriented. It's just something he obviously enjoys. Q. Prior to October of 2004, had you attended any Dover Area school board meetings? A. No. Q. Prior to October, 2004, did you learn that there was discussion about changes to the school district's biology curriculum? A. Yeah. Q. Now, if you didn't attend school board meetings, how did you learn that? A. Through the newspaper. I get it delivered daily, the evening paper. Q. And which paper is that? A. That's the York Dispatch. Q. And do you regularly read the newspaper? A. Yeah, pretty regularly. Q. And do you recall about when it was that you first realized that there was some controversy over the biology curriculum? A. Looking back, you know, I'm thinking it was probably over the summer when it really first appeared on my radar screen. But it really didn't become a reality until October and when the policy was passed. Q. When did you attend your first board meeting? A. It would have been the very next board meeting. Q. Very next meaning the one -- A. November. I'm thinking November would have been the next month. You know, they have two meetings a month, so that first one in November. Q. So you didn't attend the October 18th board meeting? A. Correct. Q. It would have been two weeks after? A. Right. Q. So the only source of information you had prior to November about what the school district was doing or planning on doing was from news reports? A. Correct. Q. And can you tell us what it is that you understood was going on at these school board meetings? MR. GILLEN: Objection, Your Honor. Just for the record preserving my hearsay objection on any information that she has no personal knowledge about but is relying on hearsay statements in the newspaper. MR. WALCZAK: Your Honor, I'm asking her about her state of mind and what it is that she knew or what it is that she understood from whatever source she may have gotten it. THE COURT: Why don't you rephrase the question to be precise as to the source. And you may have been precise, but I didn't hear it exactly that way. So I'll sustain the objection to the extent that you can be more precise. But consistent with my prior rulings, we may permit reference to the newspaper articles to refresh recollection, et cetera. So be a little bit more precise. BY MR. WALCZAK: Q. So you had not personally attended any school board meetings? A. Correct. Q. Had you framed some understanding, did you have some understanding, whether right or wrong, about what was going on in the Dover School District prior to October? A. Yes. I mean, you know, what I had been reading and some of the things I've read were outlining the controversy and basically stating that there's a science class and, you know, talk of creationism and religious ideas. There were science people coming forward. I know the guy from York College had made a statement about it not being science. There was a guy from Kansas that had made a comment about this not being science. There was the word "creationism" being used. And so, you know, it just seemed to be, you know, the science versus religious thing culminating. And that would have been my perception. Q. At some point did you -- MR. GILLEN: Your Honor, I know that we've got a standing objection, and I don't want to vex the questioner or the witness, but, I mean, she has no personal knowledge, so what she's basically testifying to is hearsay. THE COURT: Well, it doesn't go to the truth, does it? MR. GILLEN: Well, I agree that if they're not offering it for the truth of the matter and just why she's attending board meetings, that's fine, but to the extent that -- THE COURT: Well, that wasn't the question. The question wasn't why she attended board meetings, the question was what she had heard or knew about with the understanding she hadn't been to a board meeting. And now she's testified, as I understand it, sort of broadly about what she read in the newspaper, although I'm not sure of all the sources. The answer was perhaps a little bit broader than that. That doesn't go to the truth. It does go to the effect prong regardless of truth, doesn't it? MR. GILLEN: Well, I would say no. As you know, that's an issue that we're going to revisit in connection with the reporters, but, I mean, to say that she's acting based on information she received in the newspapers saying, in effect, that information was true. THE COURT: Well, we didn't get to that point yet. MR. GILLEN: Right. THE COURT: If we get to that point, that's a separate argument. MR. GILLEN: Okay. THE COURT: But right now, if you have a hearsay objection based upon the testimony that she just gave -- MR. GILLEN: Which is based on hearsay. THE COURT: Well, it's not hearsay if it doesn't go to the truth, and it didn't go to the truth yet. MR. GILLEN: Okay. THE COURT: Now -- go ahead. MR. GILLEN: I'm sorry, Your Honor. With that understanding that it's not evidence admissible for the purpose of the truth of the matter she's testifying to, that, you know, if it's what she thought, I can't object to that. I agree. But if it's offered for the truth, then I object based on hearsay. MR. WALCZAK: It is offered purely to establish her state of mind and what her understanding was based on the sources that were available to her at the time. So this is not offered for the truth of what's in those articles. MR. GILLEN: Okay. THE COURT: And we may have a disagreement that we'll endure as to the effect prong under Lemon because I don't think it requires, in every case, that the recipients -- that the information received by the recipient, in this case her, that it be true, does it? MR. GILLEN: I would think that the effects can only be established by admissible evidence, and that is evidence that is admissible for substantive purposes. Judge, I mean, I don't want to put too fine a point on it, but, you know, Chicken Little could have said the sky was falling, you know, Foxy-Woxy could have reported it, and Henny-Penny could have read it, thought it was true, but as the story goes, the King knew better. And you can't convict someone based on hearsay. You can't demonstrate effects except through admissible evidence, and that admissible evidence is non-hearsay. And by any other measure, effects have to be proven by admissible evidence. THE COURT: But the effect is subjective, isn't it? MR. GILLEN: No, it's objective, and it's based on admissible evidence. It has to be in a court proceeding, Your Honor. You can't use the effects prong to let in a ton of hearsay. If that was the case, you could prove the whole case through newspaper clippings. MR. WALCZAK: Your Honor, first of all, you know, I think if you look at Doe versus Santa Fe, certainly if you look at McCreary, I'm pretty sure in Selman -- and Mr. Katskee unfortunately left for the holidays, and he's our real expert on this, but I think in all of those cases, and in Wallace versus Jaffrey, the Court looked at newspaper articles to help gauge the effect on the community. And this is not offered -- you know, this is not there for hearsay purposes. This is not for the truth of the matter asserted. It is for what the reasonable, average person in the community is seeing or believing. And, you know, as long as I don't have to answer with a countering rhyme, let me just -- which I was duly impressed by that, but this is -- MR. GILLEN: I've got young kids. MR. WALCZAK: I do, too, but they're older. MR. GILLEN: And it fits. MR. WALCZAK: Your Honor, it is the fact that this is out there, right or wrong. And some people are forming an impression about that, again, right or wrong. But the impression here in the community is, based on reading everything that's being published, that this is a religious dispute. THE COURT: How else do you get effect? MR. GILLEN: By bringing in evidence of what actually happened and measuring it on the part of witnesses who were actually there. THE COURT: But the witness who was there, once it hits that witness, it becomes a subjective exercise, whether they're there or whether they read it in the paper. In other words, you have a dispute about what was said at these school board meetings. You have school board members who deny, as I understand it, that they said certain things that have been attributed to them. So if a witness says that he or she heard something and that's already in dispute, what am I to do with that? MR. GILLEN: But, Your Honor, from my perspective, that's the point. I mean, the effect of a newspaper article is the effect of a newspaper article. And that newspaper article, if it could be established without speculation, for one thing -- I mean, just look at what you're being asked to do here. Ten thousand people could have read the paper. One could have said, oh, my heavens, this is nonsense. Another could have said, you know, they're at it again. Who knows. Number one, it's pure speculation. Number two, the effect is the effect of what the reporter said. Look at these things. They look at what one person has said, arguably, in a board meeting and leave out what ten have said. How could the board be responsible for that? It's hearsay. THE COURT: Well, I think you make it too fine a point. In the milieu and in the array of information available to this average person, and I think the cases are somewhat in -- they're not in conflict, but are we -- who is the recipient? I think some of them set up a sort of reasonably intelligent person, but I think you're placing too fine a point on it. I think within the broad array of informational sources for measuring the effect prong, in some cases, not all of them, would be a newspaper. MR. GILLEN: But, Your Honor, to -- THE COURT: And just to finish before you argue. MR. GILLEN: Sure. THE COURT: What you're saying is for a newspaper to be that, the veracity of the newspaper article has to be tested. And once it goes through that gate and it passes, then it's all right for the effect prong, if I hear you correctly. MR. GILLEN: What I'm saying is, if it's not hearsay, then it is evidence and then it's admissible for the purpose of proving liability, but if it's hearsay, it is not. And by any other measure to say that paper clippings are the proof of effect is to say that they're proof of true effect. THE COURT: So you're saying that if the reporters testify and if I establish that the articles are -- I know you don't want this, but if we get to that point and I say that having tested the veracity of the articles based on the reporters' testimony that the articles are accurate and represent a true account of what they saw and heard at the school board meetings and if I admit that over your objection, understandably, that that -- we're over that hurdle. MR. GILLEN: I'm saying that you can admit them if you find they are an exception to the hearsay rule. Our position is still that it's not proof of effects because the newspaper article itself is the act of a newspaper reporter and not the board. And if my clients are believed, what the newspaper reporter chose to do is to create a totally false and misleading impression about the actual board deliberations, and therefore, no, they would not be -- I acknowledge, you are the gatekeeper on evidence, but it wouldn't be proof of the effects because it's the proof of what a newspaper reporter wrote. THE COURT: Well, I'll close the loop by saying this. I'm going to overrule the objection on that basis. I think what you're left with is not necessarily a technical argument on what is hearsay and what's not. I don't see that. I don't think that the hearsay objection can operate to prevent this type of effect testimony. However, I don't think that you're then estopped from arguing that the information was so unreliable that it ought not be considered for the effect prong. I would rather err on the side of letting it in at this point. You can argue from a qualitative standpoint that it's just so unreliable that a reasonable person should not have received that for the effect that it's -- as it's being attributed. MR. GILLEN: As you know, Your Honor, I'll make the arguments you let me make, and I'll deal with the rulings that you make. THE COURT: All right. MR. GILLEN: That's all I can say. MR. WALCZAK: Your Honor, let me just make one last point. In McCreary, which is the Supreme Court's most recent pronouncement on the Lemon test, the Court there -- there was a long discussion, and they set up the reasonably informed observer. It's not the reasonably informed observer who attended those McCreary County board meetings. THE COURT: I understand that. MR. WALCZAK: It's the reasonably informed observer, period. And they don't specify whether, you know, it has to be established as accurate or inaccurate information. And, you know, I mean, Ms. Sneath, to some extent, is a person -- or to every extent is a person who lives in this district, whose information she got, like other people got, through the newspaper, and what she knew as of October 18th came from the newspaper, and she formed an understanding. THE COURT: Well, I will grant that all of us should go back and look at the cases again, as if we haven't already. We certainly have. But I think you'll agree -- I think you'll agree that the cases are not consistent in terms of McCreary does say -- and that's where the word "reasonable" popped into my head -- sets up a particular test. But the cases are somewhat inconsistent, and I think there's been some confusion judicially with respect to who the recipient is for the effect prong. And I've got to negotiate that at some point. But for the purpose of this witness, I'm going to err on the side of caution and let it in subject to, as I said, an argument by the defense that, for example, consistent with McCreary, that that reasonable observer should not have accepted that on the effect prong. I frankly think that's your better argument to make than to stand so clinically on hearsay, because I don't read the cases as saying that you had to make a threshold hearsay determination on the effect prong. So with that -- MR. GILLEN: I'll bear that in mind, Your Honor. THE COURT: With that extended, complicated academic argument behind us, we'll proceed. Was there a question on the floor? MR. WALCZAK: Let me ask another question. I'm not sure if there was. BY MR. WALCZAK: Q. So was there some point in time where your interest really became focused on what was going on at the school board meetings? A. Do you mean, like, prior to the October 8th or just anytime? Q. At any point. As I understand it, you were kind of generally following what was going on through the news media? A. Yeah. And it was very general. And that would have started probably sometime in the summer, I would think. Q. But at some point your interest became acute? A. Yes. Q. And when was that? A. The closer it got to October 18th. And then that meeting, you know, that next day in the paper they had passed the curriculum change, and reality set in, you know, this has happened. Q. And was it about that time that you decided that you wanted to find out more about this topic of intelligent design? A. Yes. Q. And what did you do to educate yourself about intelligent design? A. Well, I had never heard the terminology, so, you know, my inclination is typically to go to the Internet, and that's where I started my research. And there was a lot of information available. Q. So let me just ask you, obviously you're on the Internet, you're Internet savvy, how did you go about researching intelligent design? Did you go to Google or -- A. Yeah. Oh, yes, I always use Google. Q. And what did you do? A. Just type in intelligent design, and you get a lot of hits. There's a lot of information to weed through. There's a lot of just news lists, people discussing it, but then there were more specific places that, you know, gave you more specific information. Q. And how long did you spend looking at intelligent design? A. I researched it quite a bit. You know, there was a lot of material to read. A lot of times -- you know, you have small kids, you get interrupted, you have to make dinner, whatever. You know what I mean? But I'd go back in spare time that I had to kind of look into it, because the further you looked into it, the more I realized that this was not just a local Dover issue. I became very aware that this is an issue that is, you know, widespread. Q. Do you remember some of the Web sites that popped up when you did a search for intelligent design? A. Panda's Thumb, which led me to the NCSE Web site, which was like a wealth of information. That was really the big one that told me that, you know, this was not just a small little issue here. I mean, there were Web sites that people had done that had been active in what was going on, and they kind of did their own little pages with information that they knew, specifically addressing how -- the method of getting this done by going and appealing to a school board and getting a few sympathetic members, just outlining different things like that. So it was, you know, just a wide variety. Q. Did you find information in your Internet search about the Wedge? A. I'm sorry? Q. Did you find information through your Internet search about the Wedge? A. Yes, yes. And I don't remember specifically what site it was. There was a link to it. And then, yeah, I read the Wedge document, which was kind of a real eye-opener for me. Q. And based on your own personal Internet research, did you form some opinion as to what intelligent design was? A. Yeah. Q. And what was that opinion? A. It's basically equated to creationism. It's, you know, all the same, you know, ideas with a new name, is really what it appeared to me to be. Q. Now, you started going to board meetings, I believe it was the first meeting in November? A. Yes. Q. And that was because of your concern that you thought they were now teaching creationism? A. Yeah. What is going on? I mean, it was time to get a firsthand account. Q. And at some board meeting -- and have you been a regular attendee since November? A. I went to every board meeting until, I think, over the summer. I just -- you know, you kind of need a break after a while. But up until that point, yeah, every meeting. Q. And this was purely because of your concern over this issue? A. Absolutely. Q. And at one of the November board meetings, do you recall a board member Angie Yingling making some comments? A. Yeah. She wasn't making comments while she was sitting -- you know, it wasn't during the meeting. I think it was prior to an executive meeting. And she was making comments to a reporter and -- Q. And were you present for these comments? A. Yeah. I mean, it's a small room. And when the meeting is done, everybody is kind of milling around. You know what I mean? You're all kind of right there. And we happened to be standing there, and she was making the comment that she had regretted her decision and that she had been called an atheist, she had been called un-Christian. And I felt bad because she had also talked about, at that board meeting, about giving her resignation. Now, she didn't do it at that meeting. It was a long time until she ended up actually -- I think officially stepping down. But that was like the first time she talked about it. And so with her saying that and then making these comments, it kind of like made me feel bad. And I interjected and I said to her, don't quit. Why should you quit? You know, if you feel strongly about the issue, you've changed your mind, just keep revisiting the issue. And that was really the extent of the conversation. Q. But you overheard her make comments that other board members had called her an atheist? A. That's what she was saying as I was standing there. And then, you know, as soon as she was done saying that, I, like, intervened and encouraged her not to quit. Q. And do you remember the words that she used? Did she use the word "atheist"? A. Yes. She used the word "atheist," and she used the word "un-Christian." Q. Now, did you have an opportunity to speak to Ms. Yingling again after that meeting? A. She -- I can't remember exactly which board meeting, but there was a particular board meeting she had handed me her business card, and she was like, call me, you know, and so I did. And I think I called her -- it had to have been sometime in January. I don't know, you know, exactly when. Q. And this is January, 2005? A. Correct. To see what she wanted. And she actually wanted to know if I wanted to run for school board with her, because at that time I think, you know, that she was trying to make future plans. And, you know, I really wasn't interested in doing that. But, you know, the conversation kind of went from there. And I think it was an emotional time for her. She was very emotional. She was very upset. She felt she had been treated very badly. And I remember her stating that she was working on her resignation speech. So I know it was before she actually, you know, resigned. And, again, she kind of reiterated that same thing to me, that, you know, if you're not their kind of Christian or something to that effect and -- you know, she was emotional. Q. But do you remember those words, "their kind of Christian," being said by her? A. Yeah. MR. WALCZAK: Your Honor, may I approach the witness? THE COURT: You may. MR. WALCZAK: Matt, could you put up P127, please. BY MR. WALCZAK: Q. Do you recognize what's been marked as Plaintiffs' Exhibit 127? A. Yes, I do. Q. And what is it? A. That I received in the mail. It was a piece pretty much advocating what they had -- the curriculum update that they had -- or the curriculum change that they had passed. Q. When did you receive this? A. It's dated February, so I'm assuming, because dates aren't always real good with me. Q. And how did you receive this? A. Through the mail. Q. Through the U.S. mail? A. Yeah. And I know other people that had gotten it, as well. I, you know, had talked to different people, and it was kind of the buzz of the news going around that everybody had gotten this. Q. Now, you just characterized this as advocating intelligent design. I mean, why do you say that? A. Well, that was my perception. Two days after I received this, I got a regular newsletter in the mail. And, you know, this wasn't just telling people this is what we've done, this is, look what we've done, and Senator Rick Santorum agrees in the No Child Left Behind, and, you know, all the -- what I consider propaganda to go behind it. Q. So you felt like they were trying to convince you that intelligent design is a scientific alternative to evolution? A. Not just me, the community. That was my perception. Q. Now, you indicated that two days later you got a newsletter in the mail. Who did you get a newsletter from? A. That's the regular Dover newsletter that comes out. Q. And how often does that newsletter come? A. That I don't -- four times a year? I'm not sure. But it's like -- it always looks the same. You know, you can tell it's the regular Dover newsletter. Q. So there is a newsletter that comes during a regular schedule? A. Yes, periodically. Q. So is it clear to you that this biology curriculum update was not a regular newsletter? A. Well, I -- you know, in my mind, again, if you just want to notify people about what you've done or what a school board has done, I think it would have just been reasonable to put it in a regular newsletter. I mean, obviously this was an extra expense to taxpayers. And as a taxpayer, you're concerned about that. Q. So this is not how you would want your tax dollars spent? A. No. Q. Now, you said you have a seven and a four-year-old. Can your four-year-old read this newsletter? A. No. Q. Could your -- it sounds like you have a quite inquiring seven-year-old. Could he read this newsletter? A. He could read a lot of it. A couple words we might have to help him out, but he's a pretty good reader. Q. Is it your perception that this was geared towards your children? A. No, no, I would say this is geared towards parents, taxpayers, constituents. Q. Do you believe you've been harmed by what the Dover Area School District has done in promoting intelligent design? A. Yeah, I do. Q. And how have you been harmed? A. Well, you know, as a parent, you want to be proactive in your child's education. I mean, obviously I'm not an educator. I have no big degrees. I want to be proactive, but I depend on the school district to provide the fundamentals. And I consider evolution to be a fundamental of science. And I'm quite concerned about a cautionary statement. I am quite concerned about this intelligent design idea. I do think it's confusing. I don't think it adds to his education. And at the end of the day, I mean, in my mind, intelligent designer, I mean, the word "designer" is a synonym for Creator, and, you know, that takes a leap of faith for me, you know. And I think it's my privilege to guide them in matters of faith, not a science teacher, not an administrator, and not the Dover Area School Board. MR. WALCZAK: I have no further questions. THE COURT: All right. Thank you, Mr. Walczak. Mr. Gillen, cross-examine. CROSS-EXAMINATION BY MR. GILLEN: Q. Mrs. Sneath. A. Hello, Mr. Gillen. Q. Good afternoon. I met you at your deposition and will ask you a few questions today about your trial testimony. I just want to again make clear now, you didn't attend board meetings until November, 2004. Correct? A. That's correct. Q. And you didn't speak with any board members prior to November, 2004. Correct? A. That would be correct. Q. And you didn't speak with any of the science faculty at the high school prior to that time. Correct? A. That's correct. Q. In fact, you've never spoken to the science faculty. Correct? A. Yeah. No reason. Q. You say that you -- you've done some personal reading in connection with this dispute about science? A. Yes. Q. And you've looked at material on the Internet. Correct? A. That's correct. Q. And you've looked at material by Discovery Institute. Correct? A. I did go to the Discovery Institute Web site, but I can't say that there was a whole lot of information there. It's not like they critique their own, you know, ideas, and so, you know, it wasn't that great of a Web site, actually. Q. Sure. But you did learn that approximately 300 scientists agree with the idea that they were promoting? Well, let me ask you this. A. I have heard that somewhere, but I don't know if I actually obtained that through their Web site. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Mrs. Sneath, I'd ask you to look at your deposition, which I have just handed you, Page 9. A. Page 9. Q. Looking at that, it references that you've heard that 300 scientists agree with this idea? A. Yeah, I heard it somewhere. I just wasn't -- I thought you might have been asking did I read that from their Web site, and that I did not remember doing. But I have heard that comment that 300 scientists have supported it. Q. And you've read, you said, somewhere on the Internet about the Wedge strategy? A. Yes. Q. Have you ever read a document called, Wedge Strategy, So What? A. No. Q. Now, there was a time in which you believed the board was going to require the teaching of intelligent design with equal time in the classroom. Correct? A. I think it was my understanding that it could be taught if the teacher wanted to, not necessarily the equal time. Q. Okay. And that understanding was based on what you read in the paper? A. Yes, that would have been. Q. But the board didn't do that. Correct? A. No, not as it stands now. Is that what you're asking? Q. Yes. A. Okay. Q. Likewise, you had a belief that the text of Pandas was going to be used in the classroom. Correct? A. Originally, yes, my understanding was that it was to be placed in the science classroom. Q. But they did not use it in the classroom. Correct? A. Correct. Q. It's in the library. Correct? A. Correct. Q. And you don't have an objection to that? A. I don't have an objection to them being in the library. I probably have an objection to, you know, 20 copies being in the library just for the fact that, I mean, libraries don't have much space, and, I mean, 20 books of any one book is kind of a waste of space. Q. Have you been to the library, Mrs. Sneath? A. Yes. Q. Do you know how many books are on the shelf right now? A. 24, I believe. Q. So your objection is based on the space? A. Yeah. A library just has a limited amount of space, and I don't remember seeing 20 of any other book being there. I mean, to me, put a couple out and let's leave some room for some others, perhaps. Q. You understand it's a reference text. Correct? A. I understand they call it a reference text, correct. Q. And you don't? A. No. I don't really consider it a reference text. Q. You don't have any science education, do you, Mrs. Sneath? A. That's correct. Q. Now, you've said that you recall Angie Yingling saying something about being called an atheist or un-Christian? A. That's correct. Q. You know that Angie Yingling voted for the curriculum change. Correct? A. Originally she did, that's correct. Q. But it's also true that you can't necessarily make the connection between her statements and her vote on the curriculum. Is that correct? A. No, I wouldn't say that I could. I mean, really what I was saying is that she had regretted making that decision to vote for it and made the comments in relationship to that. Q. But you can't necessarily make a connection between those comments and her vote on the curriculum change, can you? A. No, I can't. Q. Now, I understand you believe that intelligent design is not science based on what you've read on the Internet. Correct? A. Yes, that is my belief. Q. And based on your reading, also, your personal reading, you have the opinion that intelligent design is creationism. Correct? A. That is correct. Q. I want to ask you about the newsletter. Is it your position that the district shouldn't have put out a newsletter addressing this controversy? A. No, that's not my position. I think the district could have easily advised its constituents in the regular newsletter instead of paying extra money for this newsletter. And to me this was not simply a newsletter, this is what we've done. I mean, this was more than that. This was what we've done, and this is who stands behind it, and this is, you know, what makes it a great thing. Q. So it's information about intelligent design. Correct? A. Yes, it's advocating intelligent design. Q. And it's information about the curriculum change. Correct? A. Yes. Q. So that would be additional information you received in addition to your personal reading on the Internet and so on. Correct? A. Yeah. Q. Your children are what ages, Mrs. Sneath? A. Seven and four. Q. So none of them have had the statement read to them. Correct? A. No. Q. You understand that evolutionary theory is the theory that's being taught in classrooms at Dover? A. That is my understanding. (Buzzing noise.) THE COURT: That's a trick we do to try and limit cross-examination. MR. GILLEN: Judge, I have been a model of brevity. THE COURT: Just keep your voice up and stay away from the mic. MR. GILLEN: I'll try and do that. BY MR. GILLEN: Q. You understand that the biology text that was recommended by the science faculty was, in fact, purchased? A. Yes, I do understand. Q. That's the text that's assigned to students. Correct? A. Yes. MR. GILLEN: No further questions, Your Honor. THE COURT: You didn't have to take it that seriously. All right. Any redirect by Mr. Walczak? MR. WALCZAK: No, Your Honor. THE COURT: We could take another witness and at least get started if you want to, if you have one. MR. HARVEY: Yes, Your Honor. THE COURT: Why don't we do that. MR. HARVEY: The plaintiffs call to the stand Plaintiff Steve Stough. THE COURT: And I noted no exhibits. I'll stand corrected if -- MR. WALCZAK: It's just the newsletter which is already in evidence. THE COURT: It's already in. All right. STEVEN STOUGH, called as a witness, having been duly sworn or affirmed, testified as follows: THE CLERK: State your name and spell your name for the record. THE WITNESS: My name is Steve Stough, S-t-e-v-e-n, S-t-o-u-g-h. THE COURT: You may proceed. DIRECT EXAMINATION BY MR. HARVEY: Q. Good afternoon, Mr. Stough. Could you please tell us where you live. A. Yes. I reside at 4407 Belmont Road, Dover, Pennsylvania, 17315. Q. And how long have you lived there? A. I've lived at that address for 12 years. I've lived in Dover Township for 20. Q. Do you have any children? A. Yes. I have a son who is 21 and a daughter who is 14. Q. Could you please tell us the first name of your daughter? A. Sure. My daughter's first name is Ashley. Q. And where does Ashley attend school? A. She attends school at the Dover Area High School. Q. What grade is she in? A. She's in the ninth grade. Q. Is she taking biology right now? A. Yes, she is. She's in Jen Miller's honors class. Q. Can you tell us what you do for a living? A. Yes. I teach life science at Southern Middle School in Southern York County School District. Q. What is life science? A. It's a seventh-grade life science curriculum. About a third of the year includes work with inquiries, scientific method. Then two-thirds of the year would be a very basic life science class, characteristics of living things, chemistry of living things, cell theory, germ theory, at a very basic level. Q. You're a science teacher? A. Yes. Q. How long have you been a science teacher? A. I've been a science teacher -- I've been a teacher for 29 years. Q. Have you been teaching science that whole time? A. No, I have not. I've been teaching science for about 15 years. Q. Do you have any other jobs other than your job as a science teacher? A. Sure. At Southern York County School District, Susquehannock is the high school. I'm the head boys and girls track and field coach, and I'm also the head cross-country coach for boys and girls. Additionally, I serve on the strategic planning committee and am part of the staff utilization subcommittee and the technology subcommittee. Q. Please tell us just briefly your educational background. A. Okay. I graduated from West York in 1973. In 1977, I graduated from Penn State with a degree in bachelor's of elementary education. I continued my education at Millersville and Wilkes and received my master's equivalency from the Department of Education. And as a result of the No Child Left Behind, I had to take a practice test to get additional certification so that I could teach science in the middle school. Q. And how old are you? A. I'm 50 years old. Q. Do you read a newspaper? A. Yes, I do. Q. Tell us what newspapers you read on a regular basis. A. I read the York Dispatch and the York Daily Record. Q. How often do you read them? A. I read them every day. MR. GILLEN: Your Honor, just for the record, a standing objection to the hearsay from the newspaper. THE COURT: All right. The objection is noted for the same reason as interposed with the last witness. The objection is overruled. MR. GILLEN: Thank you. BY MR. HARVEY: Q. Did you say you read them on a daily basis? A. I read them every day, yes. Q. How long have you been reading them on a daily basis? A. For a long time, many years. Q. What about when you're on vacation, do you read them when you're on vacation? A. This is my sickness. I'll take my computer along, and we have dial-up service, and I will read them online every day. Q. Did you attend any meetings of the Dover Area School Board in 2004? A. In 2004, I attended the December 1st meeting, the December 4th meeting, and the December 20th meeting. Q. So you didn't attend any meetings in 2004 before December? A. No, I did not. Q. And did there come a time when you learned that the Dover School Board was considering approval of a biology textbook? A. Yes. Q. Do you know when that was? A. That would have been in early June of 2004. Q. Tell us, please, the source of your information. A. That would be the newspapers, both papers. Q. And I'd like to know, do you remember learning about specific meetings in June of 2004? A. Yes, yes. Q. Tell me what specific meetings you recall learning about. A. Well, I can't tell you the exact dates, but there were two meetings in June, I think early June, and I read about both of them in the paper. Q. Was one on June 7th and one on June 14th? A. That sounds right. Q. Now, tell us, if you can, what you can remember learning from what you read in the newspaper about the June 7th school board meeting. A. The June 7th school board meeting, what I can remember reading is that a former school board member, Barrie Callahan, had approached the board questioning why the students still did not have an adopted biology text for the ninth-grade biology course. Apparently there had been money allocated for that in a previous budget, and at this point there still had been no textbook approved. It seemed as if there was a textbook that was -- the teachers wanted approved, the dragonfly book. She was questioning why they didn't have a textbook at that point. Also, from that then my understanding is that Board Member Buckingham said that he was seeking -- well, that the book was laced with Darwinism, that he wanted to see some equal treatment of creationism along with evolution. Board Member Bonsell said that there were only two theories, and one was evolution, one was creationism. Board Member Buckingham said that the separation of church and state was a myth. And I also believe that that was the meeting that Max Pell spoke, a student, and he addressed the board just saying that, you know, evolution is the only thing that they should be teaching, that teaching creationism could cause them problems. Q. I've handed you a notebook of materials. Please open it to what's been marked as P44 and tell us if you've ever seen it before. A. Yes, I've seen this. Q. When have you seen it before? A. I would have seen this probably the day that it was -- well, yeah, the day that it was printed. Q. And have you read it more recently? A. I went over many of these articles recently, yes. Q. So is this -- P44, this is an article from the York Dispatch that was published on June the 8th of 2004. Isn't that right? A. That's correct. Q. And it concerns a meeting of the school board? A. That's correct. Q. And you read it at the time? A. Yes. Q. Now, I'd like to ask you to please take a look at what's been marked as P45, and I'm going to ask you the same question. A. Okay. Q. And have you had a chance to look at that article? A. Yes, I have. Q. And had you read that before just now? A. Yes. Q. Did you read it at the time? A. Yes, absolutely. Q. And have you read it in preparation for your testimony? A. Yes, I did. Q. And it's an article from the York Dispatch on June 9th of 2004 that also deals with this board meeting that was held on June the 7th of 2004. Isn't that true? A. That's correct. Q. Now, I'd like you to please take a look at what's been marked as P46. And I'm going to ask you the same questions with respect to that article. Have you had a chance to look at it? A. Yes, I have. Q. Did you read it at or around the time that it came out? A. Yes, I did. Q. And that was at or around June the 9th of 2004? A. Yes. Q. And this P46, this is, in fact, an article that you read at the time from the York Daily Record. Isn't that correct? A. That's correct. Q. And just for the record, this one is by Mr. Joseph Maldonado? A. Yes, yes. Q. And let's just go back and give credit where credit is due. On P44, that was an article from Heidi Bernhard-Bubb? A. That's correct. Q. And P45 was also an article by Heidi Bernhard-Bubb. Correct? A. That's correct. Q. And then finally please take a look at what's been marked as P47, and I'm going to ask you the same questions. Have you had a chance to look at that? A. Yes, I have. Q. That's an article dated June the 10th of 2004 from the York Daily Record? A. That's correct. Q. And the author is Joseph Maldonado? A. Yes. Q. And is this an article that you read at or around the date of it, June the 10th of 2004? A. Yes, I did. Q. And you've reviewed it more recently? A. That's correct. Q. Now, let's turn now to the June 14th meeting of the school board. You remember, as you stated before, reading in the paper about this meeting. Correct? A. Yes, I did. Q. Tell us what you can remember learning from what you read in the newspaper about the meeting of the school board held on June the 14th, 2004. A. What I remember reading is that Board Member Buckingham began -- or at the beginning of the meeting apologized to the community, to the people at the board meeting for his actions prior to that. But then, again, I think the issues became the textbook adoption laced with Darwinism. Again I think he repeated the claim that separation was a myth. And I think that was the meeting where he said that someone died on a Cross for us 2000 years ago, can't we do something for Him. Q. Now, I'd like you to take a look at what's been marked as Exhibit 53 in your notebook. Have you had a chance to look at that? A. Yes, I have. Q. That is an article dated June the 15th of 2004 from the York Daily Record written by Joseph Maldonado, isn't it? A. That's correct. Q. And did you read that at or around that date? A. Yes, I did. Q. And you read it more recently in preparation for your testimony? A. Yes. Q. And it deals with the June 14th meeting of the school board? A. Yes. Q. And now, please, if you would, take a look at what's been marked as P54. A. Okay. Q. That's an article from the York Dispatch dated June the 15th, 2004, written by Heidi Bernhard-Bubb. Isn't that correct? A. That's correct. Q. And it also deals with the subject of the June 14th school board meeting? A. Yes. Q. And you read that article at or around that date? A. Yes, I did. Q. And you read it again more recently to help you prepare today? A. Yes. Q. Now, there was a meeting -- do you remember reading about a meeting in July of 2004? A. Yes. Q. What do you remember reading about that? A. The only thing I remember about that meeting -- this gave me the impression that things were going well with the textbook adoption -- was that they had found a new edition of the dragonfly book, that they were looking at a 2002 edition, they had found a 2004 edition, and they were going to review that further. Q. And, again, you learned this from reading this in the newspaper? A. That's correct. Q. And if you would, please take a moment to look at what's been marked as P64 in your notebook. A. Okay. Q. Have you had a chance to review that? A. Yes. Q. That's an article dated July the 13th of 2004 from the York Dispatch written by Heidi Bernhard-Bubb, isn't it? A. That's correct. Q. And it's reporting on a July meeting of the Dover School Board? A. Yes. Q. And you read that at the time? A. Yes, I did, yes. Q. Now, did you learn about a meeting in August of 2004? A. Yes, I did. Q. And tell us what you can remember -- and again, you learned -- what you learned you learned from the local newspapers? A. That's correct. Q. Tell us what you learned about this meeting in August, 2004. A. I believe that that meeting occurred early in August, around August 4th, and at that time the textbook was eventually approved. At first it was a four-four vote. As I understand it, that's not enough to have the book adopted. Board Member Angie Yingling asked for a reconsideration vote and the re-vote was five to three. There was also some information there regarding Board Member Buckingham saying that he wouldn't allow -- or he didn't -- if he didn't get what he wanted as far as the curriculum or a book was concerned, that he didn't want to see this textbook being adopted. I think they even used the word "blackmail." Q. And please take a moment to look at what's been marked as P682. Have you had a chance to look at that? A. Yes, I have. Q. And that's an article from the York Daily Record dated August the 4th of 2004 written by Joseph Maldonado. Isn't that correct? A. That's correct. Q. And you read that at the time? A. Yes, I did. Q. And that deals with this meeting of the Dover School Board in early August? A. Yes, it does. Q. And if you would please turn to what's been marked as P683. Take a moment to look at it. That's a -- have you had a chance to look at that? A. Yes, I have. Q. That's an article dated August the 3rd, 2004 from the York Dispatch written by Heidi Bernhard-Bubb. Isn't that correct? A. That's correct. Q. And that also deals with this early August, 2004 meeting of the school board. Correct? A. Yes. Q. And, again, you read -- this is another article that you read at the time? A. Absolutely, yes. Q. Now, did you learn about a board meeting in early September? A. Yes, there were two board meetings in September. Q. What do you remember reading about the first school board -- A. This would have been the first time that it came to my attention that they were considering bringing in a supplemental textbook, the Pandas textbook. And it seemed to me that that was their answer to the dragonfly book, getting their equal balance. I think the problem was, number one, using taxpayer money, they would have to go through the adoption process. They were trying to figure a way of getting the book in and also a way of getting it into the curriculum. Q. Please take a moment to look at what's been marked as P679. Have you had a chance to look at that? A. Yes, I have. Q. That's an article dated September the 8th of 2004 from the York Daily Record by Lauri Lebo. Isn't that correct? A. That's correct. Q. And that concerns a school board meeting that was held just prior to that date? A. Yes. Q. And you read that at the time? A. Yes, I did. Q. And then if you would, please, look at what's been marked as P684. A. Okay. Q. Have you had a chance to look at that? A. Sure. Q. And that's an article dated September the 8th, 2004, from the York Dispatch written by Heidi Bernhard-Bubb dealing with that same school board meeting in early September, 2004? A. Yes, it is. Q. And you read that at the time? A. Yes, I did. Q. Now, do you remember learning about a second meeting in September of 2004? A. There was a second meeting in September. There wasn't a whole heck of a lot reported on that. Now, I did go on the board's site, and it looks like it was just a meeting, probably a business meeting that lasted 45 minutes. And I really didn't learn anything regarding this controversy. Q. Did you read about any board meetings in October of 2004? A. There were two board meetings in October. I think October 4th might have been the first one. Q. What do you recall learning from reading the newspaper about the October 4th, 2004 board meeting? A. That was when it was announced that there had been an anonymous donation of 60 copies of Pandas and People and that that book would be used as a supplemental text within the classroom. Because it was not -- didn't go through the formal adoption process, it did not require board approval. They just were basically going to put it in the classroom. The other thing that I remember there is I think that at that point Dr. Nilsen was questioned as to whether or not the teachers would be teaching intelligent design or instructed to teach intelligent design, and I think his answer was that they weren't going to be instructed to teach intelligent design, but that if they did, that would be okay. I'm not sure exactly how the phrase went. Q. Please take a moment to look at what's been marked as P685. THE COURT: While he's doing that, Mr. Harvey, by no means do I want to hurry you through this. If you think that you can finish your direct by going a little past 4:30, we can do that. Otherwise, wherever you want to -- if you've got measurably more, I would say anytime you want to find an appropriate break point, we can do that and pick up with this witness on Friday. Your call. MR. HARVEY: Thank you, Your Honor. Let me just confer with them. My co-counsel reminds me that we're going to have an expert testifying on Friday morning and that we want to make sure that we have plenty of time for his cross-examination so that he can leave that day, so we'd like to press on as long as the Court would permit us to press. If we could go to quarter of 5:00 -- THE COURT: I don't have a problem with that. Defense counsel have any problem? MR. GILLEN: We'll hang in there, Your Honor. The cross, I imagine, would be very short anyway. THE COURT: Well, let's do the best we can. We'll go until 4:45, in any event. We'll see how far we get. BY MR. HARVEY: Q. Have you had a chance to look at what's been marked as P685? A. Yes, yes. Q. And that is an article that was in the York Daily Record Sunday News on October the 5th of 2004 written by Joseph Maldonado, isn't it? A. That's correct. Q. And you read it at the time? A. Yes, I did. Q. And that was the source of your information for the meeting on October the 4th? A. That's correct. Q. Now, you said that there were two meetings in October. Do you recall the meeting -- that there was a meeting on October the 18th? A. Yes, October the 18th was where the board adopted the curriculum change to the ninth-grade biology in the area -- well, the gaps and problems and added intelligent design to their curriculum. Q. And, again, this is something you learned just from reading the paper? A. Yes. Q. Please take a moment to look at what's been marked as P678. A. Okay. Q. You've had a chance to look at that? A. Yes, I have. Q. And P678 is an article that was written by Joseph Maldonado in the York Daily Record Sunday News on October the 19th of 2004, isn't it? A. Yes. Q. And you read that at the time? A. Yes, I did. Q. And that was the source for your information about the -- what happened at the October 18th meeting? A. That's correct. Q. And if you would also please look at P686. A. Okay. Q. That's another article by Mr. Maldonado, except this one is dated October the 20th, 2004, and this one also says it's from the York Daily Record Sunday News. Isn't that correct? A. That's correct. Q. And it's a different article reporting on the same meeting? A. That's correct. Q. And you read that at the time? A. Yes, I did. Q. Now, do you remember -- I don't want you to look at the article. You can close your book for a second. Do you remember reading about or learning about comments that Board Member Heather Geesey made at that meeting on October the 18th? A. I'm not sure if it was the October the 18th meeting, but I know that there was a question regarding whether or not -- I actually thought it was the next meeting, but whether, if the teachers sought to have legal counsel, Stock and Leader, the school board's lawyers, would they, in case the teachers got sued for teaching this, would they defend them. And Heather Geesey at that point said if they would ask for that, if they'd ask for help from Stock and Leader, they should be fired. Q. "They" you mean the teachers? A. Teachers. Q. And, again, this is just what you read in the paper? A. Yes. That one, being a teacher, stood out. Q. Now, did you learn about a board meeting in early November? A. Yes. Q. And tell us what you can remember learning about that meeting. A. Well, what I remember there is that Noel Weinrich, who was -- I believe at that point in time he had resigned from the board and his resignation was effective. He was upset. He was concerned about who was going to -- if the school district got sued, who is going to cover his bills, you know, legal bills if he had any. And also he was, I think, upset because I think he had been -- he felt he had been assured by Dr. Nilsen that we were not going to be teaching -- that the district was not going to be teaching intelligent design. Q. And do you remember learning anything about tapes that had been made of the board meeting? A. Okay, the tapes. Apparently the board tapes their meetings for use when they go back and try to put their minutes together. And there were people requesting the minutes from the October 18th meeting. Those tapes were denied to them. There was some question about what the whole policy was regarding these tapes. I believe that Board Member Bonsell said that once the minutes had been typed and approved at the next board meeting, that these tapes were destroyed. And I believe that they also said under the advice of their solicitor that -- because they were -- there was the chance that they would be sued in the future because of what had happened at the October 18th meeting, that they were told that they should be destroyed, or at least not turn them over to the public. Q. Please take a moment to look at what's been marked as P669. A. Okay. Q. Have you had a chance to look at that? A. Yes, I have. Q. That's another article by the ever-present Mr. Joseph Maldonado, isn't it? A. Yes. Q. And it's dated November the 2nd, 2004, and it's for the York Daily Record Sunday News. Is that right? A. If we're looking at -- which number, 669? Q. Yes. A. 669 is dated November 2nd, 2004. I thought you said November 4th. Q. I'm sorry if I misspoke. A. Okay. Q. So it's an article dated November the 2nd of 2004 for the York Daily Record Sunday News by Mr. Maldonado? A. Correct. Q. And it's reporting on the school board meeting that was held actually on November the 1st? A. Right. Q. And you read this at the time? A. Yes, I did. Q. And if you would also please look at what's been marked as P687. And that's another article you read at the time? A. Yes, I definitely did. Q. And that's by Heidi Bernhard-Bubb, and it's dated November the 2nd, 2004, from the York Dispatch. Isn't that correct? A. That's correct. Q. And it's also reporting on the November 1st meeting? A. Yes, it is. Q. Now, in addition to reading all these newspaper articles that we've just looked at, did you review material on the Dover School Board Web site? A. Yes, I did. Q. Please take a moment to look at what's been marked as P104. What is P104? A. P104 was the -- they call it the board press release. My question all along had been, now we have this curriculum, how are they going to implement it. And I believe this is their policy that they're telling the public how they're going to implement this. They're going to read a statement. This appeared on the Web site on Friday, November 19th. Q. And did you read it on or around that date? A. That day. Q. And what was your reaction to it? A. All along I thought this would just go away. I don't know how -- that's the only thing I can say. And, you know, as a teacher, there are things in the curriculum, you try to cover them. The question is how they're going to be implemented. This showed me how this curriculum was going to -- that it was going to be implemented, how it was going to be implemented. And this, I would have to say, was the thing that put me over the edge. Q. And did you do anything after reading this? A. I called the ACLU the following Monday. Q. Did you contact Paula Knudsen from the ACLU? A. Well, what I did is, I really -- you know, I had heard the ACLU being bantered around in the newspapers at that point in time. I called -- I believe they have a hotline in Philadelphia. And I called that, and I just basically said I'm a parent who has a student in Dover School District, and I feel right now that possibly some of my rights and my daughter's rights might be being violated. I was looking for somewhere to turn. And that was basically -- you know, with contact information, that was what I did that day. Q. Now, after reading these articles and reading this -- what was posted on the Web site, did you begin to attend school board meetings? A. I did not -- well, yes, because the next school board meeting would have been December 1st. Yes, I did. Q. And that was your first school board meeting? A. Yes, it was. Q. And it was because of these issues that you attended that meeting? A. Yes. I felt it was time to get involved. Q. Now, I'd like you to take a look at what's been marked as P127. We've looked at this in court several times. Do you recognize it as the newsletter that was published in February of 2005 by the school board? A. Yes, I do. Q. And were you ever at a school board meeting where this was discussed prior to it being published? A. I wouldn't say it was discussed. Q. Tell us what you can remember being mentioned about it. A. Much to my wife's chagrin, I went to the school board meeting on February 14th, Valentine's Day. And it was not on the agenda. You're able to pull up the agenda to the school board meetings on their Web site, and it was not on that agenda. Additionally, they also publish agendas and have those there for you to pick up at the meeting. There was nothing on there regarding the approval of this newsletter. There's a section in -- when they work through their agenda, and I'm not sure exactly what it's called, but it's president's message or president's communications. And at that time Board Member Eric Riedel made a motion to send out a district newsletter in addition to the one they were already sending out regarding the biology curriculum update. It was seconded by Board Member Buckingham, and it passed seven-zero. There are nine members on the school board. Two were absent. Q. Was there any discussion among the board about it? A. No. This went quick. Q. Now, after that, did you receive this -- as a result of that, did you receive this newsletter? A. Yes. Q. And can you tell us whether -- did you read it at the time? A. Yes. Q. Now, I'd like you to tell us, what was your reaction as a schoolteacher -- and I'm going to take you through parts of it. There are some frequently asked questions, and I'd like you to look at the first frequently asked question and tell us what was your reaction as a schoolteacher to that statement. A. A small minority of parents. I don't care if it's one parent objecting to this, but the group of folks that I'm involved with are plaintiffs. We were being put into this small group that was making problems and trouble for the school district. Q. And take a look at the second frequently asked question. Did you have a reaction to that statement there? A. I would completely disagree with this. In my opinion, intelligent design is religion in disguise. I use the word "camouflage." Q. And that was your reaction at the time? A. Oh, yes. Q. Now, take a look at -- it says that it involves science versus science. Did you have a reaction to that at the time? A. Well, it's not science. I mean, intelligent design is not science. We've heard the experts here. It's not science. It doesn't reach the level of science. Q. Please take a look at the next frequently asked question when it asks about what is the theory of evolution, and I'd like to know if you had a reaction to that at the time. A. I sure did. Am I allowed to read this? Q. Sure. A. (Reading:) The word "evolution" has several meanings, and those supporting Darwin's theory of evolution use that confusion in definition to their advantage. So we're going to put evolution over on people, we're going to employ double-talk. We say one thing, we say another thing. That's not what scientists do. Q. So you understood the school board to say that science teachers engage in double-talk when they talk about evolution? A. Yes. Q. Please take a moment to look at the next frequently asked question, the one that says, What is the theory of intelligent design? A. Right, right, I was just looking it over. My problem is, again, it recognizes an intelligent designer, an intelligent cause. Again, it doesn't reach the level of science. Q. And that was your reaction at the time? A. Yes. Q. And please take a look at the next frequently asked question. Well, actually, within that, what we were just looking at, it says, In simple terms, on a molecular level, scientists have discovered a purposeful arrangement of parts which cannot be explained by Darwin's theory. Did you have a reaction to that statement at the time? A. Well, the word "purposeful." Again, I think we're going back to the whole concept of design and then someone had a purpose and that would be God. Q. The next frequently asked question says, Are Dover students taught the theory of intelligent design? And there's a response there. Do you see that? A. This is the great one-minute statement. We're making a one-minute statement, but we're not teaching. I've been teaching for 29 years. Everything that I say in that classroom is teaching. I carry a fair amount of authority and credibility within that. If I say that one NFL football -- and I'm trying to avoid sports analogies here. But if I say one NFL football team is better than another, I'm going to tell you that 80 percent of my kids are going to go back to their parents and say, this is what Mr. Stough said, and this is how it is. I don't care if it's a minute, I don't care if it's ten seconds, it's teaching. Q. And then there's another frequently asked question that said, Are there religious implications to the theory of ID? And there's a response. Can you tell us if you had a reaction to that question and response at the time? A. No more so than religious implications of Darwin's theory. There are no religious implications of the theory of evolution. They like to characterize evolution as being dogmatic, as being a religion. It's not. And so, again, they're just saying this is -- you know, evolution is a religion, too. It's not. Q. And then, finally, under the right-hand corner there's something that says, quotables, and then there's a quotation from somebody named Anthony Flew, and it refers to him as a world-famous atheist. Do you recall having a reaction to that quotation from Mr. Flew at the time? A. Sure. Q. Please tell us what was your reaction. A. Well, what they're doing -- from what I understand the story with Anthony Flew is, he was an atheist, and they equate that point in time of his life with his, you know, adhering to or accepting the theory of evolution. Then he moved towards the intelligent design concept and at the same time was finding religion, was no longer an atheist. There are a lot of messages there. Atheism is bad. Religion is good. And, you know, I had to laugh at how many people want to be world-famous atheists. MR. HARVEY: Your Honor, that's all the questions I have on that exhibit, but I do have a few other exhibits, and we're surely not going to get it done in the next few minutes. THE COURT: So you want to continue your direct? MR. HARVEY: Yes, Your Honor. THE COURT: All right. And certainly we're not going to get cross in today, so we'll adjourn for the day. We'll be in recess until Friday morning at 9:00 a.m. Now, you have an expert who is going to follow this witness. Is that correct? MR. HARVEY: Yes, Your Honor. THE COURT: Do you think that's going to take the rest of the day on Friday? MR. HARVEY: I believe so. THE COURT: Do we need to start a little earlier on Friday to get that in? MR. HARVEY: Happy to do so. THE COURT: If you don't think we do -- MR. ROTHSCHILD: I think it's a good idea to be safe. THE COURT: Why don't we start at 8:45 just to be safe and give you a little extra time. And certainly I'd give the defendants the same courtesy during your case-in-chief. I just want to keep this moving. That will give us a little bit of a cushion at the outset so we don't get lost on this witness on Friday morning. So we will reconvene at 8:45. That will be our starting time on Friday morning, and we'll go as long as we have to. I would rather not go beyond 4:30, actually, on Friday. We have a full week. I think we're in session every day or parts of every day next week, so we'll try to wrap it up at least by 4:30. But that will give us a cushion if we start at 8:45. So we'll recess until 8:45 on Friday. Wish you all a pleasant good evening. We'll see you then. MR. HARVEY: Thank you, Your Honor. (Whereupon, the proceedings were adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 9 (October 14), AM Session, Part 1 THE COURT: Good morning to all. We are at the point of cross-examination, or are we still on direct? MR. HARVEY: Yes, Your Honor, we just have some more direct. THE COURT: I apologize. I thought we had finished him. MR. HARVEY: No need. DIRECT EXAMINATION (cont'd.) BY MR. HARVEY: Q. Good morning, Mr. Stough. Do you have in front of you the exhibit that's been marked as P671? You can take that binder and put that to the side, that one. Please open up P671. This exhibit consists of a chart and a series of letters to the editor behind it. Isn't that right? A. That's correct. Q. And these are letters to the editor from the York Daily Record? A. That's correct, for the period June, 2004, through to September, 2005. Q. And I want to focus on those letters to the editor for just a minute, and we'll talk about the chart after we talk about the letters. How many letters to the editor are there in this P671? A. For the York Daily Record, there are 139 letters to the editor. Q. And, I mean, what do these letters to the editor relate to, what subject matter? A. These letters relate to the controversy in Dover. Q. And when you say "the controversy," can you tell me what you mean by "the controversy"? A. What I would mean is they deal with the biology textbook adoption, they deal with the appearance of the reference book Pandas and People, and they deal with the final adoption of the biology -- or revision of the biology curriculum of October 18th. Q. And so they are letters to the editor that address any of those subjects. Do I understand you correctly? A. Yes, yes. Q. And are these, all of the letters to the editor, on those subjects between the period June, 2004, and September, 2005? A. I think it's very difficult to say that it's all -- yes, it's all of them. Q. Now, how do you know that it's -- or how do you believe that it's all of them? A. Well, originally I read these letters contemporaneously with their publishing. However, Hedya Aryani of Pepper Hamilton assisted me and she did a sweep of -- a search of all of the articles and then did a second sweep to make sure that we had all of the articles. Q. If you would just go to your other notebook which I promised you wouldn't have to look through, but now I'm going back on my word. And in there there's a document that's been marked as P670. MR. HARVEY: Your Honor, just so you know, this P670 is an affidavit that the witness is about to explain. It's from one of our legal assistants. And the other side has indicated they have no objection to this affidavit, the use of this affidavit as opposed to calling our legal assistant to the stand. THE COURT: All right. MR. GILLEN: If I may, Your Honor, I have no objection to the affidavit and, for that reason, I believe it's rather pointless for the witness to explain the affidavit of another person. THE COURT: So this is an affidavit, for the record, P670, which indicates -- and this is a paralegal employed, Mr. Harvey, by your firm indicating that this paralegal collected the letters after a search utilizing different search engines. If you would scroll down, please. And, in addition, collected editorials from the subject newspapers and that the trial exhibits, as listed on the affidavit, are all of the editorials and the letters found from the York Daily Record and the York Dispatch during the enumerated periods. Fair statement? MR. HARVEY: That is exactly correct, Your Honor. And the purpose in putting that affidavit in is, the witness wasn't the one who actually went through and used the computer search engines to make sure that we had all of the exhibits, he relied on assistance from our legal assistant to do that actual function. So the affidavit is just intended to attest to that fact. THE COURT: Then I would agree with Mr. Gillen that the affidavit speaks for itself as an exhibit and as summarized by the Court, and there would be no need then -- the import, I guess, of Mr. Gillen's comments is there's no need for you to further examine the witness on that point. MR. GILLEN: Correct. MR. HARVEY: Perfectly acceptable. We just did everything I intended to accomplish. MR. GILLEN: Correct, Your Honor. He has no personal knowledge of what she did. She's attested to it. I told Mr. Harvey that I'm willing to accept that. THE COURT: All right. Well, then having established that, let's move to the next area. BY MR. HARVEY: Q. Okay, Mr. Stough, so we've just established, I believe, that all of these letters to the editor were between the time period, and we believe that they're all of the letters to the editor that relate to the subjects that you mentioned. Now I'd like to talk to you about the chart that's on top of Exhibit P671. Can you tell us what this chart is? A. This is a chart that basically summarizes and answers some questions that I generated regarding these articles. Q. Did you create the chart? A. I -- the chart was my responsibility; however, I was helped by Pepper Hamilton in terms of its format and typing. Q. So, in other words, you are responsible for the correctness of the information in the chart, but you didn't actually create the chart? A. Yes. MR. GILLEN: Your Honor, just for the record, to make sure -- this is a little twist on the hearsay objection and the personal knowledge objection I made at the outset of his testimony. I want to make it clear that although the chart reflects his reactions, I object to that evidence based on the underlying hearsay. THE COURT: You're objecting to the underlying evidence being the articles or the -- I should say the editorials or the letters that he viewed? MR. GILLEN: That's correct, Your Honor. As I've tried to state -- and I don't want to belabor it or hold up the examination -- my view is that Mr. Stough, if I'm saying it correctly, thank you, has no personal knowledge. He's offering a state of mind based on hearsay evidence. That state of mind is not admissible. That's my point. And this chart seems to be the way -- THE COURT: The state of mind is admissible. MR. GILLEN: Well, it's admissible to show a state of mind but not to prove the facts that produced the state of mind. THE COURT: I don't think it's being offered for that purpose. MR. HARVEY: You are correct, Your Honor. MR. GILLEN: Okay. Then I'm uncertain as to what purpose, but so long as -- THE COURT: Well, we've been -- and I understand you're preserving your objection, and certainly I'll grant you that, but we've been down this road. You believe that testimony of this nature on the effect prong necessarily implicates the truth of the matter asserted. I'm not at all certain that it does. I'll grant you that you may have an argument that you may want to reserve at the conclusion of the case. I'm going to take the testimony on the effect prong based upon, in this case, this witness's examination or review, contemporaneous review, it would appear to me, of the letters and the editorials. I understand your objection is that he's referring to something which colorably is hearsay if it's utilized for the truth of the matter asserted. I don't see that that's what they're doing, but go ahead. MR. GILLEN: I understand. And that is my purpose right now, is to make clear that his state of mind is also like the underlying hearsay, not admissible to prove the fact that he's basing his state of mind on. THE COURT: I'm not sure that I understand that. MR. GILLEN: Let me try and be more precise, because it is difficult. We've gone around it. If you'd like to reserve discussion of that until after Mr. Harvey is done, I'll do that, or I'll give you more information now. THE COURT: Are you going to cite to a case? MR. GILLEN: Not a case, the rule, Your Honor. THE COURT: Go ahead. MR. GILLEN: Okay. The state of mind exception to hearsay is found in Federal Rule of Evidence 803(3), and it does provide a limited exception for state of mind, a statement of the declarant's then existing state of mind, and it provides for admissibility. But it specifically provides "but not including a statement of memory or belief to prove the fact remembered or believed, unless it relates to the execution, revocation, identification, or terms of declarant's will." So what I'm getting at is, his state of mind is not admissible to prove the facts, any facts, that support that state of mind, including the effect of the newspaper article. MR. HARVEY: Your Honor, hearsay is a statement offered -- out-of-court statement of the declarant offered to prove the truth of the matter asserted. We are not offering these letters to the editor and the other letters to the editor and editorials that I'm going to discuss in just a few minutes for the truth of the matter asserted. We are offering them, as you have correctly perceived, on the effects test. So they're not hearsay at all. They, I believe, would also be, even if they were hearsay, they'd be admissible as to this witness's state of mind, but we don't need to go down that road. THE COURT: See, the problem that I think we're having here is that on the effects test -- and I'll say this to Mr. Gillen -- you make the assumption in citing me to 803 that necessarily, on the effects test, the truth has to be established. I don't think it does. I think it's a subjective test, and it's how he receives it. I don't have to find, on the effects prong, necessarily, that the matters that were written about in the letters -- and, indeed, you know, they're opinion letters and they're editorials in this case -- that they have to be established on the effects prong. So you take it, I think, a step too far. You're arguing, I think, in effect, that they're getting back-door hearsay in, but I don't think that's the case. For the effects prong -- I firmly believe that it's his subjective impression which fits, I think, squarely within 803, and I think he can testify under 803. I recognize that, for example, for the purpose prong, it could be back-door hearsay if I utilize that to establish a fact on the purpose prong. But I don't think the effect prong militates or the analysis of the effect prong, as I've seen in the various cases, that analysis doesn't militate in favor of the interpretation that you're putting forth. MR. GILLEN: You've said, Your Honor -- and I don't mean to belabor the point -- that you're turning in that direction. I know we're going to have a ruling here at some part. And as we approach that, you know, I'd like to have maybe a sidebar and discuss how we could best approach that from the standpoint of helping you reach the right decision. THE COURT: No, and I understand that, but I would ask you this question before we do it, and then we'll move ahead with the examination. If my interpretation isn't correct -- and it's evolving, certainly, and we'll talk about it further -- then how do you ever get to the effects prong? I think that places almost an untenable burden on the effects prong. People, lawyers and judges, have struggled with the Lemon test, as you well know, and will struggle further with it in this case as we grapple with this issue. But on the effects prong, I believe it is a highly subjective portion of the Lemon test. And -- MR. GILLEN: And I don't want to revisit all the issues here. I mean, from our perspective, as you know, we think that the primary effect of curriculum change is the effect on instruction. That we think is the appropriate effects test. With respect to what you're looking at now, I think that it's what the objective observer, we think in a classroom -- if you decide to go broader, that is your decision -- the objective, reasonable person reasonably informed, if you go that way. Now, Your Honor, but there's still -- that has to be demonstrated through admissible evidence. I think -- and I agree with you entirely that when you look at the cases, it's not clear, but what I believe the better reading of the cases is, is that they're looking at things about which they can take judicial notice. And that is essentially what they have done in many instances. So far as I can make out, they're looking at legislative history, which is a public record, and they're also looking at facts surrounding a forum about which they can take judicial notice. I don't see -- and I don't want to put it too strongly because it is a sensitive issue. The Lemon test to the establishment clause is not a wholesale repudiation of the Federal Rules of Evidence. I think that the effects have to be shown by evidence that is admissible under the rule. THE COURT: I understand your point, but I would say, just to close this off or end this portion of the discussion, that legislative history could, in itself, be hearsay. MR. GILLEN: I agree. Unless it fits within one of the exceptions, you are right. THE COURT: How do you fit it within the exception? How do you fit a statement by a legislator on the floor of the House of Representatives or the Senate or in this case a member of a school board, how do you fit that -- and it may be an admission here, of course, because they're party defendants, but in the case of another legislative history. And that's what I struggle with in this case. And when you use the word "objective observer," that's not the way it's described in every case, and I know you're aware of that. MR. GILLEN: I agree with you entirely, Judge. When you start to look at this sea of case law -- and you know and I both know there's language from the United States Supreme Court saying don't read these opinions as if they're a piece of legislation because we use words variously in different cases. It does create a problem for us trying to find out where the line is here. And I don't want to rehash it, but I would say, I think, that the proof of effects has to be proved via admissible evidence. THE COURT: I understand that, and the objection is noted on the record. We'll take the testimony subject to the objection, and we'll revisit that at a later point in time. Mr. Harvey, who properly has been on the side lines while we've had that interesting dialogue, quitting while he's ahead, can proceed now with his examination. BY MR. HARVEY: Q. Mr. Stough, you told us when we were together on Wednesday that you are an avid reader of the local newspapers. Is that correct? A. Yes. Q. Remind us, please, what are the local newspapers for the Dover community? A. The York Daily Record and the York Dispatch. Q. How often do those papers come out? A. They come out daily. The York Daily Record is the morning paper, and the York Dispatch is the evening paper. Q. So is that -- A. I'm sorry, no, they don't come out -- they come out daily throughout the week. There is one paper on Saturday, a morning paper, and then there's the Sunday News which is published by the York Daily Record. Q. And is that all of the newspapers that serve the Dover community in addition to whatever national or statewide papers there may be? A. Beyond the local -- like, we have a Community Courier that really doesn't carry any kind of newsworthy material. It's just things that are happening in the community, advertising. Beyond that, those are the two. Q. Now, these letters to the editor that are contained in P671, have you read them? A. Yes, sir. Q. When did you read them? A. I read them contemporaneous with their publishing, and then I was given a stack of them after the first search, and I read through all of them at that point in time. And then when we finally got everything put together in the notebooks, I read through them again. Q. So you've read most of them three times? A. I've read every one of them two times, most of them three. Q. Now, please tell us how this chart, P671, was put together. What did you do to be responsible for the information on this chart? A. Okay. The letters to the editor are, first off, arranged chronologically, numbered. And as you move across the chart, you'll see that they are dated. The next column would be the title of the article, and beside that would be the author, if the author's name was available. Then the next column says, Subject of letter relates to the controversy at issue, and you'll find that every one of these says "yes." Because what I was looking for was, did this deal with the controversy as I described it earlier. Q. So you noted that -- you made sure the date of the article was reflected correctly on the chart, you made sure the title of the article, the author, that all of that was correct. Do I understand you? A. Yes, sir. Q. And then in addition, you made sure that every single one of these related to what you referred to as "the controversy"? A. Right. Q. And then did you do anything else? A. I also then, during the reading of the article, tried to determine whether it discussed religion. And I looked for key words. I looked for "creationism," I looked for "religion," I looked for "theology." And I also looked a bit at -- I looked at the content of the letter to see if it really dealt with religion. Q. What if it just discussed intelligent design, did you treat that as discussing religion? A. Well, first off, so I can be clear, I do believe that intelligent design is religion. However, you would get letters that would say -- they would treat intelligent design as science. They would say it's science because of this, and it would cite scientific evidence. There would be no mention of religion. And if I did find something like that, you would find in the column "no." Q. Now, for the ones that you determined discussed religion, did you put down a quote in your chart just to illustrate why you considered it to discuss religion? A. Yes, I did. And sometimes I actually put two quotes down. Q. Give us an example of a -- pick one off your chart, one that discusses, in your mind -- of a quote that illustrates that it discusses religion. A. Number 2, Buckingham wrong on text. Creationism is religion plain and simple. Or, Number 1, Creationism is not science. Religious beliefs have no place in public, government-funded classroom. Creationism is nothing more than faith. Q. And so you did that so somebody could check your chart and see that you had, indeed, correctly determined that these articles discussed religion? A. Yes. Q. Now, the final thing, did you note whether it was pro or con the Dover Area School District Board of Directors policy? A. For my own curiosity, I was wondering if the writer -- and this was very subjective at times -- if the writer was in favor of what the school board had done or if they were against it. If they were, I noted that as being pro, and if they weren't, I noted that as being con. Q. And can you tell us, did you count up the number of letters in this chart, this P671, that discuss religion in the context of what you referred to as a controversy? A. Yes, I did. Q. And of the 139 letters to the editor from the York Daily Record that are in this binder, how many of them discuss religion? A. 86. Q. And then were there, in fact, some letters that were pro-Dover Area School District Board of Directors? A. Oh, yes, yes, absolutely. Q. And were there some that were con? A. Yes. MR. HARVEY: Your Honor, that's all I have for that exhibit. We have three other binders I'll try to move through quickly. BY MR. HARVEY: Q. You have with you P674. Please tell us, what is P674? A. P674 would be a collection of the editorials from the York Daily Record for the period June, 2004, through to September, 2005. Q. And do these -- are these editorials that discuss what you called "the controversy" before? A. Yes, they are, yes. Q. And, again, did you make sure that you had all of the editorials for the York Daily Record that discuss the controversy for the time period you mentioned by using the services of our legal assistant? A. Yes, we used the same process. Q. And have you read these editorials? A. Yes, I've read every one. Q. And when did you read them? A. Again, I read most of them contemporaneously with their publishing. I read them after the 10th of September. I don't know if earlier I said the 10th or the 20th. And then I read them once more once we had the notebooks put together. Q. And did you do with these articles -- these editorials, excuse me, what you did with the letters to the editor that we just discussed, in other words, verify the information that's on the chart that's been marked as P674? A. Yes, I did. Q. And did you, as with the letters to the editor, did you identify quotes to show that where you indicated that it did discuss religion, that somebody could look at it and see that you were right, that it was discussing religion in the context of this controversy? A. Yes, I did. Q. Can you give us an example, please? A. Sure. Number 4, What do you think, creationism and evolution? Yes, I believe that creationism should be taught in schools because evolution is only a theory, and the Bible is God's word, which has stood the test of time. Remember, God created all things. Q. And how many editorials were there for the York Daily Record that discussed what you've called "the controversy" for the period June, 2004, to September, 2005? A. 43. Q. And of those 43 editorials, did you make -- did you count up how many discussed religion? A. Yes, I did. Q. And how many was that? A. There were 28. Q. Now, if you turn to Exhibit P672. Now, we've got to give equal time to the York Dispatch. Did you -- what is P672? A. P672 would be the letters to the editor for the York Dispatch for the period June, 2004, through to September, 2005. Q. And this is very similar to what was done with respect to the letters to the editor for the York Daily Record? A. Yes. Q. How many letters to the editor were there that related to the controversy for the period June, 2004, to September, 2005? A. 86. Q. And did you -- A. I'm sorry, Mr. Harvey, did you ask me related to the controversy? Q. Yes. A. 86, yes. Q. And have you read these letters? A. Yes, I have. Q. When did you read them? A. Again, I read them as they were being published. I read them when I got a stack of them after September 10th, and I read them again once we had put the notebooks together. Q. And did you verify the information on the chart and follow the same protocol that you did for P671? A. Yes. Q. And did you -- can you give us an example of a statement that you quoted to prove that the letters to the editor were, in fact, discussing religion as you indicated? A. Sure. Number 5, Wilson would not approve. Creationism and its cousin, intelligent design, are devoid of scientific facts. Q. And, again, you treated the word "creationism" as a reference to religion? A. Correct, yes. Q. And of these 86 letters to the editor, how many did you count up that discuss religion in the same context? A. 60. Q. And please, finally, turn to what's been marked as P675. P675 is a very similar exhibit except it's for the editorials for the York Dispatch from the period of June the 1st, 2004, to September the 1st, 2005. A. That's correct. Q. And did you follow the -- did you read these editorials? A. Yes, in the same fashion. Q. And how many editorials are there? A. There are only 19. Q. And these are 19 editorials that relate to the controversy, as you described it? A. That's correct. Q. And you believe this is all of them for the same reasons? A. Again, yes, we followed the same process. Q. And of these, did you follow the same protocol for determining whether they discussed religion in the context of the controversy? A. Yes, I did. Q. And of these 19 editorials, how many discussed religion in the same context? A. 17. Q. Now, Mr. Stough, I would like you to just put those aside. We're done with that. And I'd like you to tell us, please, whether you believe that you have been harmed by the actions of the Dover Area School District Board of Directors as it relates to the change to the biology curriculum. A. Yes, I believe I have been harmed. And I believe, by extension, my daughter has been harmed, also. Q. Tell us how you believe you've been harmed. A. I believe that the actions of the school board in adopting this policy including intelligent design have usurped my authority to be the one in charge of my daughter's religious education. Intelligent design posits an intelligent designer, which for me they're talking about God. It is a more literal translation of the Bible than I would accept and I plan on teaching my daughter, that type of non-literal interpretation. And even if it didn't hurt me, if I didn't have a problem with the intelligent design, there are other individuals in the community that I think it does affect. I think it's an affront to the Constitution. I think their actions and their comments -- MR. GILLEN: Objection, Your Honor, to the extent he's offering his opinion about how it hurts others in the community. THE COURT: Mr. Harvey. MR. HARVEY: Your Honor, he's testifying about the harm to himself, and if he perceives that this is a harm to other people in the community and that, in turn, harms him, I think he can testify to that. THE COURT: Why? MR. HARVEY: Because it's relevant to the harm that he has suffered here. THE COURT: How is that relevant to the harm he suffered? It's his own claim. He's a party plaintiff. How does that help your case if he talks about how he perceives that it's harmed others? MR. HARVEY: If he believes that there's another member of the community that's being subjected to someone else's religious views by a governmental authority and that bothers him because as a citizen he believes in the Constitution and he says, that really bothers me when I see somebody who's a member -- who doesn't share the views of the religious majority in this community and is being singled out and made to feel that they're not a part of this community based on their religious beliefs, I think he can testify about that. THE COURT: Is that actionable? MR. HARVEY: I believe that's a sufficient basis for standing, yes, Your Honor. THE COURT: I don't think it is. I'll sustain the objection. I'll stand corrected if you can give me some authority, but I don't think that's actionable. He couldn't bring a claim independent of his own claim on behalf of others who he perceived to be harmed. I don't see that. MR. HARVEY: Your Honor, we've looked at P127, and we see that the school district published its intelligent design policy to the entire community and is advocating intelligent design to the entire community, and on that basis, I believe that he does have standing. THE COURT: You're conflating two things, though. My analysis would be, again, back to the Lemon test, how it was disseminated and how it was received. And when we get into the reasonable observer, I understand that. But when we're talking about -- you're into harm to him of a constitutional nature, and I just don't believe for that purpose -- you've gotten testimony in as to things that were received in the community generally, and those things will be utilized for that purpose. But when he gets into others in the community who he perceives to have been harmed, I just don't see it. MR. HARVEY: Well, I will make one more comment without belaboring the point, Your Honor, and that is, if I was a member of the majority in the community and I believed in the -- I was a member of the religious majority and I had the same religious views but I was offended because it was being forced upon my neighbor who was not the same member of that same religious majority, I believe that I could have a claim on that basis. THE COURT: What's the religious majority? MR. HARVEY: In this case, Your Honor, the religious majority is the people -- is the school board's advocating a position here and endorsing a message that is held by, presumably, the majority in the community because they're the elected officials. THE COURT: Well, you have numerous plaintiffs. All the plaintiffs were found to have standing by my prior orders, so you have plenty of plaintiffs. I just don't see it. I'll sustain the objection to that portion of the testimony. If you can cite me to some authority that I'm not aware of as to his ability to testify to harm that he perceives has befallen others, I'll stand corrected. But for the moment, I'll sustain the objection. MR. HARVEY: Understood. BY MR. HARVEY: Q. Mr. Stough, you testified on Wednesday that your daughter is in ninth grade right now at the Dover Area High School. Isn't that correct? A. Yes. Q. And she's taking biology right now? A. Yes, she is. Q. Have you considered how you are going to deal with the board's curriculum -- the biology evolution policy, the intelligent design policy, when it comes up again in, I believe, January? A. Well, at this point -- and this has been a subject of discussion among -- between my daughter and I. We're going to wait and see what happens here in the court. It may not be an issue. However, I think at this -- I believe at this point she will probably step out with the teachers while the statement is being read. Q. If she's going to step out of the classroom, or that's your view, how are you harmed by that? A. I'm harmed by that, she's harmed by that because she's no longer part of the accepted school community. She's being told that she's being removed from the classroom. Q. Mr. Stough, do you have in front of you P702? MR. GILLEN: Your Honor, this is a fresh piece of hearsay not subject to our standing objection. THE COURT: What is 702? MR. HARVEY: Your Honor, it was something that was sent to Mr. Stough in the mail, and it's not offered for the truth of the matter asserted, Your Honor. THE COURT: Let's have him identify it, and then I'll take any objection that you have. MR. GILLEN: Okay. BY MR. HARVEY: Q. Do you have P702? A. Yes, I do. Q. What is P702? A. On September 29th, when I went back to my school, I went to my mailbox, and there was a letter addressed to me at my school address, and this is a copy. I have the letter with me. It was basically half sheets. That's why it appears the way it does on the paper that I copied it on. But this is a letter that I received in the mail. There was no return address on the envelope, and there was no signature on the piece of mail. Q. And you received this in the mail at your home or your work? A. At my work. Q. And I noticed that the bottom right-hand corner is cut off. Do you actually have a better copy of this? A. I have the letter. MR. HARVEY: Your Honor, we'll substitute a better copy of this after he's done testifying, if that's okay with you and defendants' counsel. And I have no further questions on that document. THE COURT: Do you want to interpose an objection? MR. GILLEN: Yes. It's along the lines of what I've discussed with you, Judge, and I don't want to belabor the point, but, again, it's -- THE COURT: It might be different. We don't know who wrote it. MR. HARVEY: That's correct. It was, I believe, an anonymous letter received by him. THE COURT: Are you going to seek to have it made part of the record? MR. HARVEY: Yes, Your Honor. MR. GILLEN: Your Honor, I object. It's not admissible evidence. MR. HARVEY: Mr. Gillen keeps using the word "admissible." It certainly is admissible if you offer to show the harm to this plaintiff here. It's not offered for the truth of the matter asserted, so it's not admissible for that purpose, but it is admissible for another purpose. THE COURT: I think this is a little different, and perhaps we're being more clinical here. But to the extent that he read editorials and letters which it appears beyond dispute were printed in the local paper, that's fine. I understand that he has testified, the witness, that he read this. I am concerned that we have an article, we don't know the source of the article, we don't know what it was published in. It's got handwriting that appears to be of different types on it. That raises a flag with me. I understand why you're presenting it, but I am -- you have the testimony on the record that he received something in his mailbox. I'll let you ask additional questions, if you want, on this, but I'm loathed to admit this. I may not admit this. I'm not so sure that I want to admit this. MR. HARVEY: I was just going to ask the witness his reaction to the letter. THE COURT: And that's fine. I'll allow you to do that. BY MR. HARVEY: Q. Can you please tell us your reaction to this letter that you received, Mr. Stough? A. That's a tough question. I was amazed that it came to my work. I thought someone had crossed a line. If you want to say that this isn't a religious issue, this says it all. There's a lot of emotion in here. I don't know if this applies at all, but this certainly to me doesn't -- a person that is professing to be a Christian, you don't only have to talk the talk, you've got to walk the walk. MR. HARVEY: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Harvey. Mr. Gillen, are you going to cross-examine? MR. GILLEN: Sure. THE COURT: You may proceed. MR. GILLEN: Brief cross, Your Honor. CROSS-EXAMINATION BY MR. GILLEN: Q. Good morning, Mr. Stough. A. Good morning, Mr. Gillen. Q. We met at your deposition. I've got a few questions just for the record. To be clear, you did not attend any board meetings prior to December, 2004? A. December 1st, 2004 would have been the first. Q. So you have no personal knowledge of what occurred at these meetings? A. No, I do not. Q. You've indicated you talked to your daughter Ashley. You think at this point that she will opt out? A. Yes, sir. Q. You recognize she'll have a choice, to opt out or not? A. I assume. As it stands now, yes, I assume. Q. You understand that Ashley is using the Miller and Levine text in her honors biology class? A. Yes. Q. And that she'll be taught evolutionary theory in her honors biology class? A. Yes. Q. You understand that apart from the mention of intelligent design in the statement that would be read, if she chose to attend the class while it was read, intelligent design will not be mentioned at all? A. Beyond that statement, yes, I understand that. Q. You understand, I believe, that the book Of Pandas is in the library? A. Yes, yes. Q. And you have no objection to the book being in the library. Correct? A. I don't feel that I can object to the book being in the library because that would be short of censorship, but I certainly don't think it's an appropriate book to be in a high school library for several reasons. Q. But you have no objection? A. I don't think I can object. Q. Now, you've testified that you believe the intelligent designer is God. A. Yes, sir. Q. Would your opinion as to intelligent design change if I could demonstrate that intelligent design theory does not rely on reference to God to prove its claim of design? A. I'm not sure I can answer that hypothetical. I'm not sure how you could prove that one way or the other. Q. I understand that. A. I know what your question is. I just am really -- I've heard that question before. I just -- Q. Sure. It's not a trick question. What I'm saying to you is, for you the intelligent designer is God. Correct? A. I think that it's assumed that it is. I know what you're saying. They do not say it's God. Q. Right. In fact, do you have any understanding concerning whether they insist that it's a supernatural cause? A. You mean in terms of -- MR. HARVEY: I'm going to object, Your Honor, on the grounds that it's quite ambiguous as to who the "they" in that statement is. MR. GILLEN: I'm simply asking him his knowledge of intelligent design theory. THE COURT: He used the word "they," and I think we ought to probably establish who "they" are. I think his question parroted the answer that he got. Let's ask the question. MR. GILLEN: All right. BY MR. GILLEN: Q. Mr. Stough, for the purposes -- A. Stough. Q. Stough. Again, forgive me. For the purpose of this question, I want the "they" -- you and I to come to an understanding that the "they" are proponents of intelligent design theory. A. I understand. Q. Good enough. And what I'm saying is, would your opinion of intelligent design theory change if I could demonstrate that the proponents of intelligent design theory do not insist that the source of design is God? A. No. Q. Why is that? A. Because it is not a well-tested theory. The testing is based on -- or the tests that they point to, the hypotheses that they point to are simply used to negate evolution. They don't provide support for intelligent design as a theory. Q. That's your understanding of intelligent design theory? A. That's my understanding of the concept of intelligent design. Q. You've referenced a notion of testability. A. Yes, sir. Q. Based on that criteria of testability that you've described in brief, you believe intelligent design is not science. Is that correct, Mr. Stough? A. Yes, because it does not allow for falsifiable hypotheses to be generated. Q. So, again, my question is, based on that notion of testability that you've advanced, is that the basis for your understanding that intelligent design is not science? A. That's correct. Q. Would it change your opinion if I could demonstrate or it could be shown that intelligent design is testable in the same way that evolutionary theory is testable? A. If you were to show me valid and reliable testing that supports intelligent design as opposed to negates another theory. Q. That's a yes, I take it, if that could be shown? A. Given those conditions, yes. Q. Okay. And in truth, you don't know whether all of the theses advanced by evolutionary -- or the proponents of evolutionary theory are testable in the manner you've described. Correct? A. Only because my knowledge of that is limited. Q. So you don't know? A. I don't know. Q. Now, you're also not familiar with work that's being done in the area of intelligent design theory. Correct? A. If there is work being done, no, I'm not aware of it. Q. But you believe that the evidence will never point to design. Is that correct, Mr. Stough? A. "Never" is one of those absolute words that I avoid. So would you ask me the question again, please? Q. Sure. I'm asking you, and you can -- I'm asking you if your testimony today is that you believe the empirical evidence could never point to design. A. I can't say that I believe it will never point to design. Q. Okay. You have testified to at least reading about the use of the term "creationism." Correct? A. Yes, yes. Q. And you associate creationism with Genesis. Correct? A. Yes, creationism with Genesis 1, yes. Q. Do you understand intelligent design to be creationism? A. I understand it to be special creation, yes. It calls for an abrupt beginning, it calls for some supernatural causations. Q. And in your judgment, that's creationism? A. I believe that's special creation in the form of creationism, yes. MR. GILLEN: No further questions, Your Honor. THE COURT: Any redirect? MR. HARVEY: No, Your Honor. THE COURT: All right. Sir, that concludes your testimony. You may step down. Thank you. Exhibits -- MR. HARVEY: Your Honor, may I make a suggestion before you begin that? THE COURT: Yes. MR. HARVEY: That is that we have an expert witness, Dr. Padian -- THE COURT: And you're going to tell me you want to get moving? MR. HARVEY: That's a dangerous thing to say to the Court. THE COURT: No, that's fine. I know you have an expert and you want to get moving on the expert. So you want to reserve the argument on the exhibits until later? MR. HARVEY: Exactly, Your Honor. THE COURT: I'll rely on you then to remind me so that we get those in, and let's take your witness. MR. WALCZAK: Your Honor, plaintiffs call Dr. Kevin Padian. KEVIN PADIAN, PH.D., called as a witness, having been duly sworn or affirmed, testified as follows: THE CLERK: If you could state and spell your name for the record. THE WITNESS: My name is Kevin Padian, P-a-d-i-a-n. THE COURT: You may proceed. DIRECT EXAMINATION BY MR. WALCZAK: Q. Good morning, Dr. Padian. A. Good morning, Mr. Walczak. Q. Where do you live? A. I live in Berkeley, California. Q. What do you do there? A. I am Professor of Integrative Biology at the University of California and a curator in the Museum of Paleontology. Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 292. Matt, could you put that up. Do you recognize this document? A. It looks like my CV. Q. Is this a reasonably accurate representation of your professional experience? A. I believe that's a recent one, yes. Q. I'd first like to focus on your educational background. And you have a bachelor's of arts degree from Colgate University? A. Yes, sir. Q. And you have a master's of arts in teaching. Is that correct? A. That is right. Q. What does that mean? A. It means that I have permanent certification in the State of New York and several other states to teach life science in grades 7, 12. And for this training, you take postgraduate courses in education and your subject major, whatever it happens to be, and you do intern teaching and you're certified to teach. Q. And what was your subject major? A. I majored in natural sciences at Colgate, and so I'm certified with life sciences. Q. And have you ever used that degree to teach elementary or secondary school biology? A. Yes. I've taught seventh-grade life science and biology, and I've taught two years of sixth-grade process science. Q. And when was that? A. That would be in the years '72 to '75. Q. And after that, did you go back to school to get your Ph.D.? A. I went to Yale for my Ph.D. after that, which I got in biology in 1980. Q. And did you write a dissertation for your Ph.D.? A. I did. That's required. Q. And what was the topic of your dissertation? A. The topic of my dissertation was on the evolution of flight and locomotion in the flying reptiles called pterosaurs, which lived during the age of dinosaurs. Q. And where was your first professional appointment after graduating? A. I went to Berkeley right after that as an assistant professor, and I've been there ever since. Q. And what's your position there now? A. I am a professor and curator, so a professor in the Department of Integrative Biology and curator in the Museum of Paleontology there. Q. And what do you teach, Professor Padian? A. I teach a variety of courses over 25 years. Some I don't teach anymore because the curriculum changes, but currently I teach and coordinate half of our upper division junior/senior course in evolution. I teach an upper division course in the evolution of vertebrates. I teach a number of freshman seminars usually on dinosaurs. I teach a number of graduate seminars on topics that range from macroevolution to the history of evolutionary thought. Currently we're doing Darwin's Origin of Species. Q. And you said a moment ago that your background and expertise is in evolutionary biology and paleontology. Could you tell us what those specialties involve? A. Sure. Evolutionary biology is a broad field that ranges from the study of the changes through time of molecules to the changes in time of the whole history of life as it relates to the changes of the planet Earth through time, the whole solar system. And my specialty in this is what we call macroevolution. Within that, I focus principally on how major new adaptations begin in evolution. Q. When you say "major new adaptations," what do you mean? A. Well, about things like flight or how, for example, dinosaurs took over the earth. That's a great big change in evolution that happened about 225 million years ago. I work on problems like that. And I also work on problems involving dinosaurs and general things about reading their footprints, their locomotion, again, how the age of dinosaurs got started. And I'm interested in the history of evolutionary thought, how people have conceived of the idea of evolution and how it's developed over time in the past 200 years. Q. And is some aspect of what you just talked about paleontology? A. Paleontology is the study of life of the past, generally put. And so when I say that I work on macroevolution, these are large changes that happened at a scale above the population level. So we usually have to look at them through time. Q. And do you look at something called the fossil record? A. Fossil record is where I spend a lot of my time. Q. And what is the fossil record? A. The fossil record is the record in the rocks of the remains of organic beings through time. It can take the form of bone shells, footprints, trace fossils, all sorts of things. And what we do is, we don't -- I mean, when you look at television documentaries, it normally focuses on people going out in the field and parking the truck and walking out in the Badlands and, you know, stumbling over bones someplace and finding that it's interesting in digging up and getting a skeleton and putting it in plaster and taking it back to the lab. That's the first stage of what we do, but that's just the beginning of the science. The science is asking the questions about how life evolves, how the changes in life have happened through time. Q. It sounds like you have to have knowledge in many different fields. A. Well, my department is called integrative biology for a reason, that we actually look at problems in a rather integrative way. That is, my work involves physiology, bone histology, which is the tissue form of bones and mechanics of growth, as well as fossils and geologic change through time. So, yeah, the questions you ask could be pretty complex and integrative, and different kinds of evolutionary biologists and paleontologists work on different aspects of these problems. Q. And are you still involved in research? A. Oh, yes. Berkeley is a premiere research institution like Harvard or Yale or Penn State, and basically most of what we do is research and teaching. So as part of my job, I'm expected to produce a lot of peer-reviewed articles and books and things on a regular basis. Q. And you've been doing research for 30 years now? A. Yeah, roughly. Q. And this is all on evolution and paleontology and the fossil record? A. Oh, yes. Q. And you mentioned that you've -- (White noise.) MR. WALCZAK: Is that a hint, Your Honor? THE COURT: No. Inadvertent button push. BY MR. WALCZAK: Q. You mentioned that you've published peer-reviewed research. Let me direct your attention to the top of Page 2 of your curriculum vitae, or I guess about a third of the way down. Now, it says there, Publications. What do you mean by that? A. These are -- the list that I enclose with my CV here includes what we call peer-reviewed publications. And so these would be publications that have been sent out to our professional journals and, in some cases, to books that are edited by professionals again. I don't know if you've gone through the concept of peer review much in the court, but by "peer review" we mean that if you publish -- if you have some research that you've produced and you want to get it published, you send it to a journal in the field, and the editor, who is an expert in the field, takes your manuscript and sends it to several experts that you can't choose and you don't know who they are. And -- Q. So you, as the author, don't know who is reviewing your articles? A. That's correct. This is the anonymity of peer review. Ordinarily you don't know who these commentators are. Q. What's the purpose of that? A. Well, it's basically so that they can give a frank appraisal of what you're writing without worrying about whether they're going to offend you and, if you're a senior scientist, whether you're going to get mad at them or something. I don't know. But it's been a habit that's always been the case in the scientific field, certainly. And the reviewers who look at your papers then decide whether you've followed the right procedures for going about the science, whether the methods you use are up to date, whether you've cited all the literature that's relevant, whether you've inferred or speculated on more than you should, or whether it's basically within the grounds of what is acceptable science. And they will propose changes, major or minor. If they don't think that your paper is very good, they'll suggest it be rejected, and the editor takes that into consideration. Q. And so is everything that is submitted to a peer-review journal published? A. Oh, no. A lot submitted to peer-review journals isn't published. It depends on the journal. On the journals on which I've been an editor, you have an acceptance rate of anywhere from 50 percent upwards or downwards to 30 percent, for example, in the ones I'm familiar with. Q. And is there a -- what you might consider a hierarchy of journals for publication? A. Yes, there are certain journals that pretty much every scientist in the world reads every week. Two of them in particular are Nature, which is published in London by Macmillan Journals, and Science, which is published in Washington every week by the American Association for the Advancement of Science, which is our sort of central public science organization in America. Everybody reads those journals because they contain good review articles, but mainly the hottest sort of new research in all fields. They will also include news about new scientific developments not just in science but in education, industry, technology, even this court case, for example. Q. And do they have a high rejection rate? A. Oh, yes, they have a very high rejection rate. No more than about 10 percent of what's submitted to them even gets considered for publication. Q. Now, is there something called -- is it an impact factor? A. Yeah, there's a -- the Institute for Scientific Information produces a measure of how important journals are basically to the fields. Journals like Nature and Science have a very high impact factor. But they're general journals that everybody reads, and they're highly selective. Some fields are smaller fields, they don't have much of an impact because they're not cited very much simply because the fields are small, but within the fields they might be very important. So you could have an impact factor that is relatively low, but in the field it's high because it's cited a lot for that field. Q. And the way they measure this impact factor is to see how many times an article from that publication is cited thereafter? A. That's basically it. Q. And what journals have you published in? A. Well, I've published in a lot of journals. My colleagues and I try to -- you know, you always try to go for the best journal in the field that you're writing for the people who would be the most interested in the research. Sometimes I'm writing about dinosaur footprints, and I might try to publish in a journal that publishes a lot of footprint work. Other times, for example, when we've done our work on how fast dinosaurs grow, learning about this from the fine structure of their bone tissues, we've gone to Nature, we've gone to Paleobiology, we've gone to Journal of Vertebrate Paleontology, again, sort of the best journals in the field that we can target, depending on the scope and interest of what we're trying to do. Not all the papers are gems, not all are Nobel prize quality. Sometimes they are very general, and sometimes they're a very specific interest. Q. Now, I note that by my count, you've got eight pages of peer-reviewed publications listed here in your curriculum vitae. Do you know how many peer-reviewed publications you are either an author or coauthor on? A. It's 8200. I don't keep a correct count. Q. And have you included in this curriculum vitae nonpeer-reviewed publications? A. I believe the copy that I gave the Court may have only the peer-reviewed ones. I have about another eight or ten pages of things like book reviews and popular articles, things in Scientific American and stuff like that. But I didn't include all those here. I may have included some of the books that I've authored or edited. Q. Let's turn to -- I believe it's Page 9. And you've got a heading on books. And you are either the author or the editor or a contributor to these nine books? A. Yes. Q. And just pick one. Tell us about your contribution to, for instance, the Encyclopedia of Dinosaurs, and what is that book? A. The Encyclopedia of Dinosaurs was published by Academic Press, I guess in 1997. It's a standard reference work for the field. And my job, along with Phil Currie, my coeditor, was to organize and solicit the contributions to make sure all the relevant entries were covered, to read the manuscripts when they came in from the authors, if they needed changes, to suggest them or to make them. And, in fact, as it turns out, I wound up writing about a sixth or a seventh of the book before publication just because of filling in the parts that were needed, as inevitably happens with reference works. Q. And this is a book that would be found in your public library or your school library as a reference text on dinosaurs? A. Yes. This book is cited by other scientists in their publications. It is in libraries for ordinary people to read. We tried to write it at a level that somebody that would have a general understanding of dinosaurs would do it. And then for the dino fans and freaks, they're going to pick it up, too, and enjoy it as much as the rest of us. Q. Now, does something become science or accepted in science because it's published in a book? A. Well, it depends on the book. When books are published, they may have a seminal influence, but simply because something is published in a book doesn't mean that it's science. I think that that's a question of its reception by the scientific community. If somebody writes a book and nobody reads it, is it influential? And the answer would be no. And if somebody writes a book but claims it's science and it's not cited by scientists, it doesn't stimulate scientific research and the ideas in it are never brought to peer review, then the answer is probably not much, because we depend on peer-review discussion of ideas and research results in order to further the progress of science. Q. So anybody can write a book and proclaim that they have a new scientific theory, but the test really is whether it's ultimately accepted by a large part of the scientific community? A. Yes. And here I think the term "theory," again, has to be looked at the way scientists consider it. A theory is not just something that we think of in the middle of the night after too much coffee and not enough sleep. That's an idea. And if you have a hypothesis, it's something that's a testable proposition, you can actually find some evidence that will help you to weigh it one way or the other. A theory, in science, as maybe it's been pointed out in court, I don't know, in science means a very large body of information that's withstood a lot of testing. It probably consists of a number of different hypotheses, many different lines of evidence. And it's something that is very difficult to slay with an ugly fact, as Huxley once put it, because it's just a complex body of work that's been worked on through time. Gravitation is a theory that's unlikely to be falsified even if we saw something fall up. It would make us wonder, but we'd try to figure out what was going on there rather than just immediately dismiss gravitation. Q. Is the same true for evolution? A. Oh, yes. Evolution has a great number of different kinds of lines of evidence that support it from, of course, the fossil record, the geologic record, comparative anatomy, comparative embryology, systematic, that is, classification work, molecular phylogenies, all of these independent lines of evidence. Q. We're going to talk a little bit more in detail about some of those concepts in just a couple of minutes. Your expertise has been recognized by professional societies and scientific journals in a sense that you have been an officer or a committee chair on a number of prominent scientific associations? A. Yes, if that's a measure. My work is published in the organs of scientific societies, their professional journals. I've served as an officer in a couple of societies and committee member, and I've been on the editorial board of a number of peer-reviewed journals in our field. Q. Matt, if you could turn back to the first page of Dr. Padian's CV under Professional Service. Now, it appears that you've been an editor on the editorial board of more than a half a dozen journals. Can you tell us what it means to be an editor of a journal? A. It generally means that when manuscripts come in, the chief editor will send them to you either for review yourself or for deciding whether they should be reviewed by people. Or if you send them out to review, you might gather the reviews from the referees and determine the merits of the manuscript in question. Often, of course, with general editorial meetings you're looking at where the journal wants to go, what kinds of papers and research it wants to solicit, sort of things like that. Q. And I note that you've had a couple of stints as editor of the Journal of Vertebrate Paleontology. Is that a prestigious journal in your field? A. That is, in our field of just those paleontologists that run around the rocks and look for the remains of old animals with backbones, yes, that's our primary international scientific organization. Paleobiology is probably the premiere journal in the field of paleontology that works on macroevolution, which is one of the things that interests me. Q. And you were the editor of Paleobiology for six years? A. I was one of the editors on the editorial committee, yes. Q. And you were also on the editorial board of Geology and the Proceedings of the Royal Society of London? A. Yes. Q. Dr. Padian, have you had any experience with high school or elementary school curriculum development and teacher training? A. Yes. Since I've been in California, since the mid 1980s, I've worked in several capacities for the State Department of Education in California on various panels and committees. Notably, I guess, I was one of the people who wrote and edited the state science framework for K12 schools in 1990. And this is the central document that embodies science education for the state. It's the document against which districts and other organizations will develop their curricula locally. And my role there was to write about guidelines for the -- explaining what science is, the nature of science, explaining the goals for K12 in the life sciences and for some of the earth sciences and several other parts of that. In addition, I guess I've served three times on what we call the instructional materials evaluation panel as a scientific member. California is an adoption state, which means that it's one of 23 states for which the state actually selects which textbooks can be used by local districts and for which state funds can be spent. And so it's kind of a quality control that educators and content area specialists like scientists or historians or mathematicians will get together and evaluate textbooks and things submitted. And then the question is whether these are -- which ones pass muster and which ones don't, and that's what you can use state funds to buy. Q. And you've been involved in that for several years? A. Three times. Q. And do you have familiarity with creationism and intelligent design? A. Yes. Q. And just tell us a little bit about that. What's your history of involvement? A. Well, California has an interesting history with respect to the creationist movement, I guess we might call it creation science and related fields. The Institute for Creation Research in Southern California has been very active since the early 1980s and various kinds of legal and social processes that have come out of objections to the teaching of evolution in California have mirrored what's happened in other states, as well. And so early on in the 1980s I was one of a number of scientists who were involved in trying to clarify evolution and related science to the public and to advise the Department of Education and other bodies about it and to talk generally to the public about what evolution was. And these organizations and sort of committees of correspondence, as they were called then, eventually morphed into what became the National Center for Science Education which I've been president of for some years. Q. I'm sorry, you said you're president of the National Center for Science -- A. National Center for Science Education. Q. Dr. Padian, can you tell us a little bit about the history of paleontology and its importance to evolution? A. Sure. Paleontology, the idea that you're finding rocks that have the remains of ancient life in it, has been around actually in some form or another since the 1500s and 1600s when people first started to understand that these were actually the remains of organisms that were dead and not simply sports of nature or some kind of sculptural-looking accident. The understanding of fossils really began to mature in the late 1700s when people realized that these were the remains of dead creatures that were not coming back, they were extinct. And the upshot of this meant that ideas about the philosophy of nature began to change as the enlightenment developed. By 1800, you had people in both England and France developing systems of looking at the order of the rocks through time, moving up through a section, that could be correlated from one area to another. The same sequences of rocks were appearing. These were used in England, for example, by civil engineers to dig canals and to show them where reliably they could find the right rocks to dig canals through. Part of these indications were by the fossils that they contained which also went up in the same sequence every time. And this resulted in the first real geologic map of England, which was produced in about 1800. So we're already talking about using fossils in a very forensic sense, that is, to help dig canals, but using them as an index for mapping geologic -- we call them strata or outcrops all over England. A similar development of the idea was taking place in France at the time and also in Germany. So the idea that there was a progression of fossils in rocks from the oldest to the youngest going up through a section of rocks is really quite old. And it was developed, in a sense, that had nothing to do with any ideas about evolution. It was just seen as the progression of fossils through time. And then ultimately in the early 1800s people began to understand that this reflected an idea of common ancestry change through time and the fact that in the past the world was not like it is now. Q. And so what you've just told us about is taking place before Charles Darwin published his Origin of Species? A. Oh, yes. Darwin doesn't publish the Origin of Species until 1859. The geologic map of England is being done by 1801, and already by 1846 they have a pretty good idea of the diversity of fossils through time. Q. So was Darwin trying to explain the history of life or the fossil record? A. No, he really wasn't. Other people were doing that at the time, including people like Richard Owen. What Darwin was doing was proposing a mechanism for how change through time could occur in a lineage of organisms, and he called that natural selection. He made an analogy with what he called artificial selection, which is what breeders do every day in selecting plants and animals for the characteristics that we admire or want to use for various purposes. Q. Now, we've had, I guess, testimony in this case where people seem to be using terms in different ways. Could you distinguish for us the way science uses the term "natural selection" from "evolution of life"? I mean, is there a distinction? A. Yes. "Evolution," of course, refers to change through time in a general sense. Darwin's own definition is descent with modification, which is probably still the best one. Natural selection is a mechanism, a process that accounts for a lot of that change, but it needs to be distinguished from evolution, per se, because there are a number of mechanisms, as Darwin noted, including sexual selection, which is another term he invented, a concept that he invented, as he did so many things, and it's just one mechanism for life to change. It's not the whole thing. Darwin was very clear on that in his writings. Q. And can you distinguish evolution of life, the term "evolution of life," from the term "origin of life"? A. Sure. And that's a common conflation in popular parlance. Evolution of life is essentially the whole enchilada. It's everything from the first organisms that appeared right up until the organisms that are alive today. That whole procession of things, all the patterns and processes that are involved in it, we would call the evolution of life. "Origins" is a trickier phrase. The origin of life we expect, as Darwin said in 1859 -- the last paragraph of The Origin of Species refers to one or a few forms being the original embodiment of life. But today we look at the genetic material, DNA, RNA, and its genetic components, and scientists reason from this that they are so complex and so similar that they must have had a common origin. And this is the origin of life question. That's separate if you talk about, like, origin of birds or origin of mammals or origin of the middle ear. Those things are part of the progression of life that's already established. They aren't something new that happens all over again that's, in other words, abruptly or specially put in there. They're just part of something that's already happening that now is modified to become something else. Q. So as scientists would use "origin of life," that would be sort of first life? A. Exactly. Q. Now, it seems that genes and molecules are getting much of the attention today when you're talking about evolution. Is it still important to study comparative anatomy, fossils, geology, paleontology? I guess another way to say it, are you still relevant? A. I'm a fossil like everybody else. No, genes and molecules get a lot of press, and deservedly so. The research on them has been amazing over the past half century. The new discovery has just come at an incredible rate. They're just revealing all sorts of new things about the world we never could have imagined. We could have hoped we could have known, but we wouldn't have known how. But, oddly enough, the most recent great advances in biology are coming with the integration of this new molecular evidence with what we already know from comparative anatomy, from fossils, and from geology. An example I could give you is like the hottest area in biology today is called evo-devo or evolutionary developmental biology. Evo-devo is not a rock group. And the thing about it is that the whole premise of evo-devo is that we are now understanding a lot more about the genes that actually code for the development of organisms. That is, we know the genes that make you line up in a front-to-back axis and make your limbs sprout and make you have wings instead of hoofs or whatever it happens to be. These are under the command of a relatively well-organized system of genes that are universal among a great many organisms. And you can even transplant parts of these into other organisms, and they'll work properly, which is really amazing. And why paleontology and evolutionary biology is relevant to this is because, for one thing, in the fossil record we see a lot of forms that are not present in any kind of shape today. Configurations of hands and wings and skulls that we can see by examination of the genetic structure and functions of development actually are produced in certain ways and they mimic what we see in the past. So, oddly enough, paleontology, evolutionary biology are coming back front and center to be integrated in this very hot new area. Q. So is it fair to say that molecular biology today reinforces what you find in paleontology or integrative biology? A. Oh, yes. The molecular biology of the 1960s and '70s was very strongly what we would call reductionists. That is, they were looking for the little, tiny workings, because they were able to do so, of genes and structures in the cells and chromosomes, and that was really amazing. But, you know, in a sense, all that work is figuring out how the carburetor goes, you know, what are all the parts here. But they don't lose sight of and it doesn't change the importance of, you know, how you drive the car, what the purpose of the car is in terms of running down the road and operating on the internal combustion engine. And that's where the evolution comes in. Q. I want to ask you one other question coming back to natural selection, and you said that is a mechanism for driving evolution. A. Yes. Q. And is that a mechanism that is widely supported by the scientific community? A. Oh, yes. Darwin proposed it at the same time that Alfred Russel Wallace came up with it in 1858. And since then natural selection has been tested in the wild and in laboratory populations by a great number of scientists. And there are many books written that summarize this research, and the understanding of natural selection is primary to understanding population biology and evolution. Q. Now, next week an expert for the school district, Dr. Behe, are you familiar with him? A. Yes. Q. He's going to testify. And Dr. Behe has claimed that it is not possible to observe natural selection in the fossil record. And is that true, and, if so, is the fossil record relevant to evolution? A. Dr. Behe and some of the ID proponents characterize evolution, Darwinism evolution, as they call it, as random mutation and natural selection alone. And natural selection is important, but it's not the only process. Random mutation is a whole other problem in language. But natural selection can be observed in the fossil record in a different way than we'd see it in populations. When Darwin developed his idea of natural selection, he's looking at individuals running around out there. He's saying that an individual horse is going to be able better to escape a lion than another horse. That horse is going to live longer, produce more offspring with the same characteristics, and those will be passed on to the next generation. So this is an idea about individuals. Now, the problem is, when we go out to the fossil record, if we have a nice fossil deposit here of snails or clams or whatever it happens to be and you've got, you know, many local fossils, fossil deposits which you can find things like this, you know, we can't tell whether a particular fossil clam was better adapted than the guy who is dead next to him. We can't measure how many successful offspring he had. We just simply don't know. We don't know anything about the reproduction of fossils, individual organisms. And so in that sense, we're not looking at that level of natural selection. But as everybody knows, we have a concept in evolution called "adaptation," which is sort of the main thing that drives the origination of new sort of types of organisms, the way that they get around in the world. And this notion of adaptation, by definition, is shaped by natural selection. And my job is to look at macroevolution, and I focus on how new adaptations get going. So I study natural selection all the time in its ramifications for the development and improvement of all these complex adaptations that click in piece by piece in fossil animals and are shaped and preserved by natural selection. Q. So the fossil record, in fact, helps to support the whole concept of natural selection? A. In fact, it's indispensable to it, because we could look at natural selection in populations today, but our compass for looking at populations today is on the order of years, maybe decades, in some cases centuries. A trend that we see today might reverse itself. It might be just sort of a drift or a random fluctuation, a temporary change, but in the fossil record, you see change through the big time. This is deep time, we call it. This is like mega history. MR. WALCZAK: Your Honor, I was thinking about taking a break now. It might be an opportune time. THE COURT: Why don't we do that. Let's take a shorter break than we've been taking so that we can keep moving with this witness. We'll take a 15-minute break at this point, and we'll return with Mr. Walczak's continued direct examination of this witness. We'll be in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 9 (October 14), AM Session, Part 2 THE COURT: All right, Mr. Walczak, you may continue. MR. WALCZAK: Thank you, Your Honor. BY MR. WALCZAK: Q. Dr. Padian, what is intelligent design? A. As I understand the definition, intelligent design is the proposition that there are some things, natural phenomena in the world that could not have come to being by natural means and that the design of these structures has a certain complexity and certain features that implies that they must have been produced by what is called an intelligent designer by which is understood to mean possibly some kind of unknown forces or a supernatural being. Q. And how is intelligent design different from creation science? A. Well, it has some similarities, and it has some differences. Creation science is a movement that flowered mostly in the 1960s and 1970s. And creation science was an attempt by certain conservative Christian people with some science or engineering degrees to attempt to explain Bible stories or to find scientific evidence for Bible stories or explain them in scientific terms, that is, to attempt to justify them on scientific grounds. Intelligent design doesn't have as its objective to validate Bible stories or any particular religious or creation stories, but what it shares with creation science, in part, is the insistence that things were designed and could not have evolved. And so over 90 percent of the corpus of intelligent design work has to do with basically trying to undermine the evidence for evolution and the concepts associated with evolution and related sciences. Q. And we're going to spend a good bit of time talking about the undermining attempt, the undermining of the evolutionary science. As I understand it, the affirmative argument for design, not the criticism of evolution, but the affirmative argument for design is that it looks designed or it's so complicated we can't imagine that it couldn't have been designed. Is that your understanding? A. That's my understanding, in an informal sense, that that's what they mean. Q. What's wrong with this appearance of design analysis from a scientific standpoint? A. Well, it's not particularly rigorous. Lots of things look designed, but they may not necessarily be designed. Intelligent design looks a lot like science in some respects, but it's only superficial. It doesn't operate according to the principles of science, so the resemblances are superficial. And appearances can be deceiving. For all the world, it looks like, you know, to us normal people, that the sun goes around the Earth. And for most people, it wouldn't make a difference whether the sun went around the Earth or it went around the moon, as Sherlock Holmes famously said to Watson. But when the renaissance scholars understood, found out that, in fact, the sun does not go around the Earth but the Earth and the planets go around the sun, it changed the way we look at the whole natural world in a very important and fundamental way. And so part of the process of science is to discover things that will make a difference to our understanding of the natural world and not simply to reinforce appearances that are very difficult to test in an objective or testable sense. Q. Let's begin to talk about the problems that you have with how intelligent design represents science, and I want to focus on the areas of science within your expertise. What is wrong with the intelligent design arguments against evolution? A. Well, there are a number of systemic problems with the arguments about intelligent design. Q. I'm sorry, Professor Padian, have you prepared an exhibit to help you explain this? A. Yes. At your request, I've done some demonstratives that I hope may be of use in illustrating some of these things. Q. Matt, would you put up the first slide, please. A. There are certain systemic problems with the way that intelligent design represents the scientific findings of the scientific community. And in a sense, it is really just standard anti-evolutionist special creationism. I will explain why it's special creationism in the course of things. The ways that scientists have problems with intelligent design literature is, first of all, that it provides some misleading definitions of evolution. In doing so, it sets up a straw man. It also distorts some commonplace scientific concepts, and, as a result, it sows doubt in the minds of students who would understandably be confused, as I am, by their treatment of certain fairly standard ideas. When they -- Q. What kind of concepts do they sow doubt about? A. Well, they begin -- if you want to begin with definitions of evolution, they define micro and macroevolution in different terms. Microevolution they're fine with. That's evolution in populations. It's just genetic variation. And creation scientists didn't have a problem with that stuff, either. But when we study evolution, we actually look at it on several discrete levels. Microevolution is what happens in populations at the gene level and among individuals in populations within a species. But then when populations diverge from each other geographically and genetically to the point where they become different species, different lineages that are not going to have a mixed history anymore but separate histories and diverge further and make more new species, we call this process speciation, and it's a different level of consideration than simply what happens in populations, because now you see we have the situation where we're no longer exchanging genes with each other in a population, we're actually looking at two separate or more separate entities that will be that way historically for the future. Once we start looking at how these new lineages, new species and new species that they give rise to, interact in the environment, how they change further through time, how they adapt more to changing environmental conditions, we're now at the level that's called macroevolution. And the reason we call it macroevolution is it's just on a bigger level. We're no longer dealing with populations. Q. And by "populations," you mean, like, people or horses or -- A. Well, like just groups of organisms. Individual organisms within a species are different populations. You can have a population in this valley, a population in that state, whatever it happens to be. The way that scientists regard this is much like economists look at microeconomics and macroeconomics. Microeconomics is how you run the corner grocery store, you know, what the economic balance is in the small town's economy, how a company works. But macroeconomics has more to do with things like the Federal Reserve, the international balance of trade. The common thing that -- the thread between this is, of course, money. It's all about currency. It's cash at some level. And with evolution, we've got genes that are very similar because everything is hereditary. It's transmitted. And the genetic transmission of this works one way within populations when organisms can exchange genes, but when you get above the species level, they're no longer exchanging genes. We're working at different species disporting themselves through time. And then you get the whole process of the evolution of new adaptations and major groups of animals and plants. And the intelligent design people define macroevolution as a major change that has to happen to make a major group, and they say that this is a completely different process than what happens at the microevolutionary level. And scientists just don't think so. Q. And are some of the other concepts that they don't quite represent accurately homology and cladistics and classifications? A. Yes, the basic principles of classification, the principles also by which you can compare organisms in order to say things in comparative biology are very problematic for intelligent design creationists. They have a hard time explaining these in the terms that scientists use. And so a lot of what they do is to try to cast doubt on the very legitimacy of the basis of doing these things as scientists understand them. Q. I'm sorry, continue. I believe you were on Number 3. A. One of the problems with the ways that intelligent design creationists present scientific evidence is that they present only part of it. They present the part that might suit their cause, but they really leave out an awful lot of important research. And in so doing, they say that scientists don't know this or they can't know this. And this creates the sense of ridicule for students. Now, you know, we'll be the first people to admit that science doesn't know everything and can't know everything. But on the other hand, we would like a fair and accurate representation of what we do know. I would also like to show in the course of explaining some of these things today that most of the claims that the ID proponents make are directly inherited from the old-time scientific creationism claims in the evolution bashing that they do. Many of the same arguments are used, the same kinds of evidence are used. And, finally, the conclusion that is raised is that if you can mount some kind of alleged evidence against evolution, which is most of what the ID proponents do, as the scientific creationists did, then this is evidence for intelligent design. In so doing, they set up this false dichotomy or contrived dualism of religion and science that is disturbing to scientists who have religious backgrounds, as well as to those who don't have religious backgrounds because it isn't part of science to do that. Q. Now, you said that ID proponents mischaracterize evolution as just a starting point. Matt, could you put up the next slide. A. Yes, calling macroevolution the origin of new types, this is not a definition that scientists would recognize. Macroevolution, as I mentioned, is looking at the patterns and processes of organisms above the level of species. So we're trying to figure out a lot of the major patterns of evolutionary change, but the origin of new types, again, that word "origins" comes in, and scientists just don't talk about origins in that sort of cataclysmic sense. The proponents of intelligent design, as you see here embodied in these quotes from Of Pandas and People, claim that it's a mistake to claim from macroevolution the status of fact. And, again, this confuses for students what facts mean in science. In contrast, from Pandas, again from Page 99 to 100, they state, quote, that intelligent design means that various forms of life begin abruptly through an intelligent agency with their distinctive features already intact. And this tells you two things, first of all, that everything was already the way it was when things first appeared, so there's no transitions, and that an intelligent agency did this. Now, that's a perfectly fine idea, but it's not scientific to claim this in advance of any kind of evidence that could be adduced to the contrary. Q. But in order for this to be true, you have to show that evolution is false? A. Yes, or at least you have to exclude the possibility of considering it in advance, which is a philosophical rather than an empirical consideration. Q. If we could go to the next slide. You say that there are other definitions that intelligent design proponents confuse. A. Yes. I would just like to clarify what we mean when we talk about speciation, macroevolution, which really differs from how it's treated in texts like Pandas. We call speciation what happens when new lineages are formed. They diverge from parent populations. That is, from old species new species bud off, if you will. And this can happen in many different ways. You can have changes in behavior, in structure, in ecological adaptation, in physiology, in geography, and all these things may lead to the historical differentiation of these lineages. That's how we get new species. It's been happening ever since life was first running around on the planet. Intelligent design proponents claim, for example, in Pandas that when speciation occurs, it actually limits variation, and so it's really unlikely that the kinds of changes we see in populations can actually lead to speciation. I find this statement surprising because there's no evidence that I know of that when a new species forms, that genetic variability is necessarily reduced. It doesn't seem to be the case. Species that are closely related to each other, you don't find one with a lot less genetic variability than another that has ascribed to this process. And so we regard speciation, in fact, as the raw material for the big changes through time. It's like births in a population are the starting point for populational change and development and the way that new species are formed. Without new species, we wouldn't get any kind of new developments in evolution. Q. And that's contrasted with macroevolution how? A. Well, the macroevolution -- then the speciation becomes the raw material for macroevolution, because macroevolution would be the study of what happens to those species after they're formed and as they deploy themselves through time, space, and ecology. Q. And, Matt, if you could turn to the next slide. And you're familiar with the textbook Of Pandas and People? A. Yes. Q. And do you believe that Pandas is a good representation of intelligent design theory or thinking? A. I think it is. And I believe that the ID proponents also attest to this. Q. And here we have a slide. We pulled out a passage from Page 85. This is what they say about speciation? A. Yes. Q. And could you read the highlighted passage? A. The whole thing? Q. Please. A. It says, Does speciation fit with the theory that species were originally designed? If the intelligent design explanation is true, there may be species on the face of the earth that have undergone no substantial change since their beginning. On the other hand, the idea of intelligent design does not preclude the possibility that variation within species occurs or that new species are formed from existing populations as illustrated by the previous discussion of squirrels. The theory of intelligent design does suggest that there are limits to the amount of variation that natural selection and random change mechanisms can produce. Q. So according to intelligent design, speciation is what? A. Well, speciation is, for them, mostly unlikely on the basis of the kind of genetic variation that occurs. They're happy with genetic variation occurring within species. That's perfectly okay with them. That doesn't lead to much of anything. They say that speciation can occur, but it doesn't involve new innovations and that some species have not changed since their beginning. Now, we'll have to examine what we mean by "some." But they do state that the known natural mechanisms are too limited to account for the important biological change and the adaptive diversity that we see through time. Q. And if science's concept of speciation is, in fact, accurate, then that would mean that there's no abrupt appearance of organisms already intact? A. Well, it certainly would mean that we are not finding new complex adaptations appearing all at once in major groups of organisms with no possibility of their evolution step by step from other kinds of creatures out there, and that's a point on which books like Pandas is quite adamant. They consistently say this does not occur. Q. And is this argument from Pandas and by intelligent design proponents similar to the argument that creation scientists made? A. Yes. It's quite similar in its ramifications. Q. Could you put up the next slide, please, Matt. Could you tell us what this is, Professor Padian? A. The slide is some text from a publication from the Institute for Creation Research called Impact Number 43 by Duane Gish. Duane Gish is vice president of the Institute for Creation Research, a famous creation scientist speaker who has been giving presentations against evolution for several decades now. And what I'd like to show by this quotation included in the record is that the ideas of intelligent design reflect exactly what special creationists, what scientific creationists, so-called, were saying decades ago. Here, for example, outlined in yellow on the top paragraph, Duane Gish says that natural selection would be powerless to generate increasing complexity and to originate something new or novel and thus powerless to change one kind of animal into another. Now, by that is understood, at least, the basis of speciation, and this is very close to what the Pandas text says, and I think the idea really conveys the same message. In the bottom paragraph, Mr. Gish notes that such a process could only produce variance within an established kind and could never produce new and novel structures. Q. I want to start talking about some of the areas of evolutionary biology and evolution that Pandas discusses and get your understanding of whether they are accurate representations of current scientific thought. I've asked you to pick several examples out of Pandas where you believe that they do not accurately represent the science. And does the first one involve something called cladistics? A. Yes. I wanted to talk a bit to explain, if I could, the basis for classification in science. Q. And when you say "classification," what do you mean by that? A. I mean precisely how we study the relationships of organisms. The basis of classification, since Darwin, has been the relationships that organisms have to each other. And the concepts of how classification is done, how we, in other words, understand and construct the tree of life, the whole idea of who ancestors and what ancestors are and the relationships of organisms to each other are problems that works such as Pandas really do not reflect accurately the way that science understands these processes, procedures and methods. Q. And have you prepared a demonstrative exhibit to help explain this? A. Yes. I'd like to do just a basic showing of what some of the principles are, if I could have the next slide to talk about that. In their texts, intelligent design proponents either do not understand or they don't accept how scientists establish relationships among organisms because most of this is left out of what their discussions are. Despite a lot of popular impression, when we try to establish relationships among living and extinct organisms, it's not a never-ending search for direct ancestors. We don't go out in the fossil record, I don't go out looking for dinosaurs or whatever I'm doing in the summer in the field season looking for the ancestor of something else I know. I don't expect to find a direct ancestor of anything. The chances of that are really small. But I want to show you what we do try to look for. Paleontologists, in other words, are not searching the rocks for the missing links. Instead, when we, like all biologists, establish organisms, living and extinct, whether we work on bacteria or mosses or hoofed animals, it doesn't matter, we all do this according to the same methods in biology, and it doesn't matter whether we use molecules or fossils. What we do is we look for shared characteristics. These are uniquely shared characteristics shared by certain organisms and not others. And by identifying these characteristics, we identify the pathway of evolution, that is, the order, the sequence, the genealogy of evolution. We want to find out who is most closely related to whom. And the reasoning is that if an organism acquires a new trait and passes it on to its descendents, then those descendents will be more closely related to each other because they possess that new trait than anybody else in the world will be. And that's the principle that we use. And this is a fairly simple concept to get across, and it's revolutionized the way that people do what we call systematics or to assemble the tree of life. But, in fact, this began in the 1960s and 1970s, and so for decades it's been the standard. There are two concepts of ancestry that are important to point out here. One is lineal, and the other is called collateral. Lineal ancestors are the ones that are directly in your path, that is, your parents, your grandparents, your great grandparents, your great, great, great, and all the times you can say great, those are your direct ancestors. But collateral ancestors are a little broader than that. They would include your aunts and uncles, your great aunt, your cousin twice removed on your mother's side, and that guy with the funny hat in the civil war picture on the wall in the dining room, whatever it happens to be. These are what we call collateral ancestors. They are individuals who are not directly in your ancestral line, but they still share so many of your features that they can tell us a lot about who you were -- who you are. If you know, for example, that your family came from Sweden in the 1800s, you can return to Sweden to the approximate place where they came. Maybe you can't find their bones in the church yard, but you can find the relics and the remains and the museum's evidence for many other aspects of their culture and their biology. You know what they ate, you know what they wore, you know the language they spoke. You may know from photographs and drawings what they looked like, what their features were. You may be able to recognize your ancestral features, as well. All these things are properties of collateral ancestors, not just lineal or direct ancestors. So when we look to assemble the relationships of organisms, we don't have to find every direct ancestor. In fact, in the fossil record, it's really hard to say that somebody was anybody's direct ancestor, as I mentioned before with the fossil clams. We don't know what offspring any individual left. It's too hard for us to figure out. But we can still tell a great deal about it. And this is how we assemble the tree of life. The next slide I have here is a preparation of a kind of diagram that we call a cladogram. And it's very similar to a phylogenetic tree, that is to say a tree of relationships. But the logic of this, I want to point out, is not something that's arbitrary. It's not simply assembled by art or by anything that's subjective. Rather, it is a diagram that reflects the grouping of organisms according to these new evolutionary features, these shared characteristics I mentioned before. And if you can see the red marks along this -- the basic spine of the hat rack running from the lower left to the upper right -- these things always look like hat racks to me. I don't know what else you'd describe them as. But each one of those red bars represents a feature that was a new evolutionary feature that we reasoned was a new evolutionary feature because it suddenly is something that now all the animals above it share and the animals below it do not share. So, for example, at the top here, the human and gorilla are united by a great many features, and we've only listed a few here because it would just really crowd things, and I think it's fairly obvious. Things that the human and gorilla share are a prehensile hand and a large brain. That is not the case for the cow, the lion, the marsupials, and the other animals on this slide. We reason that on the basis of this and many other shared characteristics that these features were inherited from a common ancestor. It's the best natural explanation we can come up with. And as we go down this diagram even more, what we find is that at each juncture -- and if we can just stop it there for a second -- we find an increasing number of things that all these groups have. And so if you look at the level put here on the chart that's indicated, there's a shared feature called an amnion, which is a property of one of the membranes of the egg around the embryo, that is shared by birds, marsupials, and placental mammals, but frogs and sharks and fishes don't have it. And so these hierarchically nested sets of features are the logical structure by which scientists establish the relationships of life. Q. I'm sorry, Professor Padian. Matt, if you could go back just a couple of slides. So you talked about how -- and I guess we read from left to right up the line is how you read this? A. Well, all we can say is this is a depiction of how all these organisms are related. We don't look on this as a ladder of life. We don't look at it as fish give rise to frogs which give rise to birds. It's not like that. Q. But, for instance, where you have the stirrup-shaped ear bone -- A. Yes. Q. -- and you have that line, so it would be the organisms above that that share that particular feature? A. That's correct. That would be something that unites them to the exclusion of all the other critters on the slide. And that's the logic of cladograms, pure and simple. I'd like to stress that we can use physical features like this, we can use them on fossils or on living animals, we can use them on molecules or we can use them on skeletal features or egg shell proteins or anything else that we want to do. Whatever works, we use. It's very practical. Q. And is this a -- could you say it's a universal approach used by scientists? A. Since the 1960s, it has become the dominant form of understanding relationships in the scientific community around the world. I would go so far as to say that if you were going to apply to the National Science Foundation to ask for money to work on the classification of a group of organisms, whether it was dinosaurs or a group of bacteria or mosses or liverworts, you would have to show the review panel that you understood the principles that I'm discussing here and that you were going to use this kind of analysis in your work if you wanted to convince them that you knew what you were doing. Q. And is this method somehow validated quantitatively or statistically? A. Yes. And I'm glad you raised that point, because I've only put a couple of the features on this chart. But, in fact, there are hundreds that are represented in this analysis. And it's obviously too many for us to arrange by hand. And so all the characters that we're talking about and all the animals that we're trying to analyze, we have ways of putting these into a data matrix and asking the computer essentially to sort this out for us to produce the simplest to the most, basically, complicated trees that you could possibly get. And we try to start with the simplest trees for further work, which is a principle in science called parsimony. Q. And do intelligent design proponents use this type of cladogram? A. I haven't seen them use any type of analysis like this in any of their works. Q. And if you could advance to the intelligent design slide. Is this a copy of a chart found in Of Pandas and People? A. Yes. This is Figure 4 from Pandas, second edition. Q. And can you tell us what this is? A. Well, the caption says that it's the pattern of phylogenetic origins, according to the face value interpretation of the fossil record. Q. And can you make heads or tails of this? A. I have trouble. I'm not sure -- I guess I understand that time is the axis from top to bottom. That's perfectly fine, although there are no particular periods listed. I understand that they're looking at variation in morphology, and that's perfectly fine. But there are no names of organisms there, so I don't know exactly what they're talking about. Also, the presence of these bars as straight bars without variation suggests quite strongly that organisms suddenly appear quite recognizable as what they are and do not vary in morphology all the way up through the geologic column until they peter out. Q. So this chart would show that there's abrupt creation and then there's no change in those organisms throughout their lifetimes? A. That would be the face-value interpretation that they say the fossil record shows. Now, I just want to point out that this implies that there is no substantial change in any fossil lineages because they have drawn only bars that go straight up with no change, no diversification, no anything. Q. And if you represented a classification system in a grant application to the National Science Foundation like this, you don't believe you would get a grant? A. Well, no, but, of course, this is not meant to represent any kind of research, it's meant to be a didactic device for teaching. I should also note that if we're talking about phylogeny in relationships, this wouldn't qualify because it doesn't draw any lines between those lines. It doesn't admit the possibility that any of those lines evolved from any of the others. Q. I'm going to talk about the use of the term "irreducible complexity" and "adaptational packages" as it's used by intelligent design proponents. Can you explain to us how Pandas uses the term "adaptational packages"? A. Well, the last slide showed you lineages of organisms that seem to have a sudden appearance and no substantial change during their histories and of no relationship to any other lineages in this diagram. This suggests quite strongly, and the Pandas authors are making this point, that organisms that they regard as major types of organisms suddenly appear with all their major features intact and that they do not change. These are characterized in works like Pandas as adaptational packages, which they say cannot be separated into simpler components without destroying the functional advantage that they provide to the organisms that have them. And so these adaptational packages for ID proponents represent the concept called irreducible complexity, which means that they can't evolve by known natural means, they're too complex to do so, and so they must be specially created by a designer. Q. Now, that term "irreducible complexity," is that one, to your knowledge, that's found in Pandas? A. To my knowledge, the exact words are not found in Pandas. I believe the first place where that is really brought out as a major term is in Michael Behe's book Darwin's Black Box in 1996. But in 1993, when I believe Professor Behe was working on the second edition of Pandas, these concepts are brought out in the second edition of that text. Q. So Dr. Behe's concept of irreducible complexity is contained in Pandas even though that term is not used? A. Yes. And before, even in the first edition, these adaptational packages are represented. They are essentially one of these ideas that, again, has a long pedigree, that there are such complex forms out there they couldn't possibly have evolved. We've heard these arguments since the 1800s, so they do have a long history. Q. Perhaps you could help explain to us these adaptational packages and irreducible complexity. A. Well, there seems to be some conflict among the ID proponents about this. Dr. Behe claims that irreducible complexity applies only to cells and molecules, and that's his specialty, of course, he's a biochemist, and that it does not apply to adaptive features in organs or to major groups of organisms. But if you look at the whole corpus of intelligent design work, including Pandas, on which Dr. Behe worked, the implications of irreducible complexity are extended time and time again to large-scale tissue and organ adaptations and, indeed, to whole organisms. And so if we're going to accept this, we have to accept that Dr. Behe had no knowledge that his coauthors were going to take his concept above the cell and molecular level, or irreducible complexity is, in fact, not only a molecular concept and we cannot accept Dr. Behe's view on that point. Q. And have you identified an example to show how this irreducible complexity does apply above the molecular level? A. Yes. I'll give a number of them from Pandas just to show that they actually are there. The next slide, I believe, shows several quotations from Pandas that indicate that it applies to levels above simply molecules. A quote from Page 72 indicates that multi-functional adaptations where a single structure or trait achieves two or more functions at once. This is not restricted to the cell level. A quote from Page 71 talks about, quote, the total engineering requirements of an organism like the giraffe, unquote. So here they are talking about the whole organism, a giraffe, not simply a cell or a molecule. The quote from Page 66 says, quote, It has not been demonstrated that mutations are able to produce the highly-coordinated parts of novel structures needed again and again by macroevolution. Now, recall here that macroevolution, to intelligent designers, is the origin of new types of organisms, not of new cells, not of new molecules. So they are really looking at the large-scale structural tissue, organ, individual organism level. And, finally, the quotation from Page 25, which I believe is maybe even repeated more or less on Page 99 -- Q. So that's not an error, that is on Page 25? A. Oh, yes, it's 25, as well. Q. And this is from the introduction, overview of the book? A. Yes, it's from the overview of the book. It says, quote, that design theories suggest that various forms of life began with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings, et cetera. So they are talking about various forms of life, not molecules, not cells. And here's an example, just to show you a page from Pandas, that does this with respect not to the giraffe as a whole, I've already showed you how they've dealt with the consummate engineering requirements of the giraffe as a whole, but this is just a set of structures in the giraffe's head, neck, and brain. Q. And could you identify the figure and page number? A. Oh, yes, I'm sorry. This is Figure 2.5 from Pages 69 and 70. Q. And that's in Pandas? A. In Pandas, second edition. And so they are talking about an adaptational package in the caption that protects the giraffe from hemorrhaging in the brain. And this is all perfectly reasonable. Pressure sensors along the arteries, muscle fibers in the artery walls, heavily valved veins, and the arteries that approach the head they say correctly branch into what's called rete mirabile, which is a network of capillaries that prevents the brain from exploding when it gets a flood of blood coming up to it suddenly. These are correctly understood by physiologists as part of an adaptation of the giraffe, but I just want to point out here that this is not a discussion of cells and molecules, this is a discussion of tissues and organs. Q. Now, I want to turn to the fossil record, and I've asked you to identify from the book Of Pandas and People various examples where they claim that certain types of organisms could not have evolved naturally. Can you show us where you believe that Pandas misrepresents the science? I believe you want to start with the Cambrian explosion? A. Well, I'd like to start with a few examples that are of some concern to scientists because the representation of the science in these pages is really quite different from what scientists understand and understood when Pandas was written. The next slide, I guess, starts with several quotations from Pandas about the Cambrian explosion. Now, I should explain that what is meant by the Cambrian explosion is a sudden appearance of organisms that are shelled marine organisms within a geologically rapid time, relatively speaking, 10 to 30 million years as the smallest possible increment, which seems like a long time to us as humans. If my testimony goes very long, I think it's going to seem like several million years, but -- THE COURT: You're doing fine so far. THE WITNESS: You know, time to paleontologists means something quite different than it means to ecologists and normal people. But these organisms appear over 500 million years ago. And we find records mainly of these shelled sea creatures, marine invertebrates we call them, snails and clams and their relatives back in that time. Before this the record is a bit more difficult. It preserves different kinds of fossils that are a little bit harder to suss out. And this has been a really interesting area of study for paleontologists, biologists, geochemists, geophysicists for many, many years. The way that Pandas treats this is to say that organisms appear with these adaptational packages intact at the Cambrian boundary, multicellular life first flowers here. No evidence whatsoever of fossil ancestors. BY MR. WALCZAK: Q. Now, I'm sorry, is that a direct quote from Pandas? A. This is a direct quote from Pandas, Page 71 and 72. They go on to infer directly that only an intelligent designer could do this. They state, on Page 94 and 95, that the great majority of these animal phyla, by which is meant sort of these major groups of invertebrates, the arthropods and the annelids and the echinoderms and the mollusks and so forth, brachiopods, appear in a remarkably brief period of time, again, 10 to 30 million years. We'll have recourse to that 10 to 30 figure in a second. But they say they're not connected by evolutionary intermediates, and there's an unexpected lack of fossils bridging the evolutionary distance between these phyla to document evolutionary origins for them. Q. What does that mean? A. I'm not sure. There are some code words there. I would agree that the fossil record is not complete. It will never be complete. On the other hand, how many intermediates do you need to suggest relationships, and what do you accept as intermediate? And in the previous paragraph, there is some text that's even more worrisome because they say that these are adaptational packages that appear at the Cambrian boundary, by which they mean the boundary between the pre-Cambrian and the Cambrian. They say that multicellular life first flowers there, whatever that means, but they say there's no evidence whatsoever of fossil ancestors. Q. And is that true? A. Well, I think the record will show us something different. Before we go to the next slide, however, I want to point out at the bottom that after talking about phyla, groups of phyla, these major divisions of animals that are apparently having no bridges between them and no ancestors, they then go on to say that categories of classification are largely artificial human groupings. I would agree with that, but it contradicts what they say in the previous passages, because if you treat phyla as somehow real entities that you cannot bridge, then how can you also say that these categories are largely artificial? The next slide shows a bit of this pedigree, again from scientific creationism. A quote here from Henry Morris, who is head of the Institute for Scientific Creationism outside San Diego, from his textbook of more than three decades ago claiming that all of these kingdoms, phyla and classes unchanged since life began, that things appear suddenly, no incipient forms leading up to them. There may have been changes within kinds, but they haven't varied since the beginning except for those that have become extinct. Q. And that's what Henry Morris said? A. That's what Henry Morris said as a scientific creationist. This language is, I think, identical to what you see in Pandas. And, again, the statement from Pandas that I just read is below that. Q. And that's from Page 71 and 72 of Pandas? A. Yes. Q. And is that accurate? A. Is it an accurate representation of science? Q. Yes. A. I believe it's a little more complex than that. The next slide is another quotation from Duane Gish, who we've seen before as the vice president for the Institute for Creation Research. Duane Gish is talking about the Cambrian geological strata, a sudden great outburst of fossils, and he says that what is found in rocks supposedly older than the Cambrian, that is, in the so-called pre-Cambrian rocks, he says not a single indisputable fossil, unquote. This is very reminiscent of the language we've just seen in Pandas where they say there aren't any ancestors. And if I could show the next slide. This quotation, also from Pandas, implies quite directly that there are no chains of fossils leading from lower organisms to higher ones. They stress that we can only accept evolution if we assume that only natural causes were at work to explain these things. But then they say there's another possibility that science leaves open to us, and that is that an intelligent cause made fully formed and functional creatures which later left their traces in the rocks. This is as close a definition as I could come to special creation. I don't see how else you could interpret that as the possibility that natural processes could have gotten you from one form to another. Q. And you are just quoting from Pages 25 and 26 of Pandas? A. This is Pages 25-26 of Pandas. Q. And what is this slide, Professor Padian? A. This diagram comes from Page 95 of the second edition of Pandas. It's Figure 4.2. I can best describe it by the caption provided, their own caption, which says, This is a generalized schematic of the fossil record that's designed to show the Cambrian origins of nearly all animal phyla. Dotted lines represent the presumed existence of phyla, not the fossil record. Again, I'm not sure what this chart is meant to represent, because what students are not being shown here or, indeed, any readers, there's no real time scale on here, so the implication clearly is that the vast majority of these things appeared all at once at the Cambrian/pre-Cambrian boundary. Boom, there they are. And if you look at that line below the Cambrian, where it says pre-Cambrian, there is no record whatsoever. There are no fossils as far as they're concerned. They say in the caption this is a generalized schematic of the fossil record. They don't tell you which animal groups they're talking about, and they don't give you any idea that there could be any possible relationships among these organisms. And so the question of whether that's an accurate depiction of the fossil record may be illustrated by this diagram from Kevin Peterson and his colleagues in Paleobiology earlier this year. Q. I'm sorry, what is that text? A. Paleobiology is a peer-review journal in our field. Q. And that's 2005? A. 2005. What the authors have done here is essentially to turn the rock column on its side, so time is now going from the lower left to the lower right as we move up into the Cambrian early and late. And you can see the boundary here between the Cambrian and the Ediacaran period right before that. Q. Professor Padian, you have a pointer, a laser pointer there. It might be helpful to show that. A. Okay. We'll see if it works. I can see that there. Okay, I can kind of see it myself. I'm not sure if that's visible to you. THE COURT: We can see it. THE WITNESS: Okay. The dark bars here, the dark black bars, are the actual fossil records of organisms. The gray bars you see here, these are cases where there are fossils that are supposed to be this old, but they haven't been verified yet. The lighter colored black bars here are inferred existences that are inferred by a different line of evidence. These red boxes with numbers in them are dates by which scientists estimate when the divergences between -- that is, the separations between lines like this took place, the annelids and the mollusks. You may ask, how is this done? And the answer is, well, molecular biology looks at the configurations of genes on chromosomes. By lining up the genes, the sequences of the genes are homologized and matched up with each other, and the closest matches and the more derived similarities, the unusual features of evolution, tell us which groups are most related to which. Now, in the Pandas diagram, all of the names on the right-hand side in these various colors, the names of the major groups of organisms were not given, and there was no indication that we had any idea that these lines could be related to each other. But, in fact, we had morphological ideas based on fossils, on embryology, and on the shells and tissues of these animals. Molecular biology has now come through with a whole other wealth of data. And this is -- BY MR. WALCZAK: Q. I'm sorry, in the red boxes, those are dates? A. The red boxes are numbers that are estimated dates of when each of the lines in question would have separated from each other based on how much their molecules differ or resemble each other. Q. So that would be the age of the fossils? A. That would be the age of the splits of the lineages. The fossils may not extend back that far. Sometimes they get nearly that far, and sometimes they don't. The fossils are represented by the little purple boxes below the slide here. There you see the purple boxes at the bottom. And, for example, here at about 600, we have listed the oldest metazoans. Metazoans are multicellular animals with several distinct tissue layers, so they would include actually all the animals here on this slide except the bottom two, and the bottom two, as their names suggest, are sponges. And it turns out that the molecular date shows a divergence time at about 604 years. The oldest metazoans are dated, estimated in the fossil record at this date, as well. Q. I'm sorry, you said 604 years. That's 604 million years? A. Million years, yeah. The next slide I think will give an indication of not so much the relationships of these organisms, but of the fact that, indeed, before the so-called Cambrian explosion, there was a lot of evolution. For example, the Cambrian explosion listed here in yellow -- and I'm not sure if I can make this -- yeah. The Cambrian explosion here of skeletonized animals is seen by scientists as really mostly a preservational artifact, although a lot of evolution is going on. But this is the point in history in which a lot of skeletons begin to be preserved, where before this we're not getting that much. So the Cambrian explosion here is occurring along this yellow bar from about the Cambrian boundary well up into over 520 million years ago. It's not a single abrupt process but rather it's a process that takes quite a long time. Even after this so-called Cambrian explosion, there are amazing preservations of fossils, soft-bodied critters that show us remains that we don't find earlier just because they're not preserved. It's very difficult to preserve fossils. And at this Cambrian boundary where, according to works like Pandas, there are no fossils before that, there are no transitions, there are no possible ancestors, well, one of the things I pointed out before is that, you know, we're not always looking for direct ancestors, we're finding things that have the same features as the organisms that we're trying to understand the relationships of. And so this pre-Cambrian record is actually quite interesting. We have fossilized animal burrows, and the burrows of these animals go in sort of all sorts of curvy lines and wavy lines that indicate that the animals were proceeding front to back, so they were what we call bilaterian, that is, two-sided things like us, like snails, like worms, like things that are -- have a left and a right side. This is the way they walk. So even though we didn't have their shells or other remains of them, we have their burrows that could only have been made by complex metazoans that were also bilaterians, that is, two-sided animals. We can even go back -- Q. I'm sorry, and those have been dated before the Cambrian boundary? A. Oh, yes. Everything that you see at the Cambrian boundary is over 540 million years old, and these are things that are still older than that. Q. And on the right-hand side of this slide, there are several photographs. Can you tell us what those are? A. These are photographs of the actual fossils. This is the actual fossil evidence that is preserved. These are taken from, in some cases, peer-reviewed books and journals and in some cases Web sites where the specimens are well known from other sources. I want to point out that at about 590 million years there's a little dot there where it says "fossil metazoan embryos" at the bottom of the slide, and there's a picture of one of them. This is a really amazing find because it shows us that some 50 million years before the Cambrian boundary and even longer before some of the Cambrian explosion took place, we have evidence of metazoan embryos. By that we mean the embryos of organisms that belong to one of the groups I showed in the previous slide. How do we know this? We know this because the embryos themselves have characteristics of metazoans. They are not simply one-celled organisms. And if there are these embryos then, then there are metazoans present. That doesn't mean that there are full-blown trilobites and snails and brachiopods and so forth, but it does mean that there was some kind of metazoan life. Q. And is this well established in science? A. Oh, yes. It's the subject of countless articles and books and papers. And a few of them just are here, along with a recent book by Jim Valentine, who is emeritus professor in my department, member of the National Academy of Science, and one of the four or five most important paleobiologists of the last century, and he treated this problem and all its ramifications in depth. Q. And if you could just read the titles and the journals from which they came into the record. A. The top one is, Fossils, Molecules, and Embryos: New Perspectives on the Cambrian Explosion. This comes from a journal called Development. Now, Development is about developmental biology. Would you expect to see fossils in developmental biology? Well, as I said before, this is the new age of integrative biology. Fossils are really important to all kinds of evolutionary study. They're incredibly indispensable to this sort of work. A paper below that from Integrative and Comparative Biology, which is, again, not a paleontological journal, by Nick Butterfield called, Exceptional Fossil Preservation and the Cambrian Explosion, because we see this as a problem of preservation, not just of quick evolution. Both things are going on here. And, finally, below in a journal called Molecular Phylogenetics and Evolution, again, not a journal you'd think the average rock hound would be publishing in, but we have Current Advances in the Phylogenetic Reconstruction of Metazoan Evolution, a New Paradigm for the Cambrian Explosion? And these are all journals and articles that show the integration of molecular techniques with the fossil record, with developmental biology, and this is why it's one of the most exciting areas you'll find. Q. And so the statements you've read to us a few minutes ago about the way Pandas characterizes the Cambrian boundary and says that there are no fossil ancestors before that boundary, that's not supported by the state of science today? A. Well, as we can see, there are some metazoans that appear well before the Cambrian boundary. If you are looking for direct ancestors, if you insist on an unbroken stream of intermediate fossils to document a case, I'm afraid that that's going to be difficult to get under any circumstances, but it's also equally impossible for the historical record of humans. If we had to come up with evidence of every one of our direct linear or collateral ancestors and know everything about them, it would be impossible, yet we don't question the parentage of our friends and neighbors because they can't do that. Q. Now, we talked about the evolution of invertebrates. Can you talk to us about how Pandas portrays the evolution of vertebrates? A. Yes, I would like to talk a bit about some of the major transitions that are discussed in Pandas that relate to backboned animals, which are closer to home, as far as we're concerned, because we belong among the backboned vertebrates. The text from Pandas says that fossil types are -- Q. I'm sorry, are you quoting? A. I'm quoting from Page 22. Fossil types are fully formed and functional when they first appear in the fossil record. For example, we don't find creatures that are partly fish and partly something else leading to today's fish. They say, Instead, fish have all the characteristics of today's fish from the earliest known fish fossils, reptiles in the record have all the characteristics of present-day reptiles, and so on. This is, again, the abrupt appearance theory, sudden appearance complex adaptive packages, irreducible complexity argument. Q. So this says fish were formed intact? A. Yeah, pretty much, yep. Here is their treatment of amphibians. Q. And this is a slide from Page 104 of Pandas? A. Page 104, yes. They say at the upper left column, Darwinists believe that the first amphibians evolved from early fish. "Darwinists believe," that's problematic language. It suggests to students that these are just matters of faith without any evidence. And for myself, I'd prefer to reserve matters of belief and faith for things that are not tested empirically. The Pandas authors say in the next paragraph that if Crossopterygians, by which they mean the fish-like things, really did evolve into amphibians, by which they mean the first animals that came on land, tremendous changes must have taken place. Fins must have been transformed into four limbs, the skull had to change from two parts to a single solid piece. The hipbones had to enlarge and become attached to the backbone. Numerous changes must also have occurred in other soft tissues and so on. They say in the next paragraph, How many different transitional species were required to bridge the gap? Hundreds even thousands? We don't know, but we do know that no such transitional species have been recovered. Q. The next slide, is this a diagram from Pandas? A. This is a diagram from Pandas of two forms from the fossil record. Eusthenopteron, which they take to be a fish, and Icthyostega, which they take to be an amphibian. Eusthenopteron doesn't look much like any fish you know. Neither does Icthyostega look much like any living amphibian. But in naming them like this, the editors, authors of Pandas are really giving them assignments to different whole groups of organisms and suggesting that the transition between them would be very difficult to achieve. Certainly there are differences between these two skeletons. There are differences in the way they're drawn, as well as many features of their specimens that we find in the fossil record. And the next slide -- Q. I'm sorry, and that was from Page 103 of Pandas? A. Yes. We've prepared some slides that show a bit more accurately the way that scientists understand this fossil record. What we've done here is to take the text from Pandas on Pages 103 and 104, but to illustrate our illustration of some of the major fossil animals that are known that move from aquatic, fish-like critters, up into the first animals that appear on land. We're including in this Eusthenopteron, which is the second guy from the bottom left, and Icthyostega, which is three more guys up to the right from him, which are the two animals you saw in the last slide in Pandas. Pandas is giving you two animals and inviting you to draw contrasts between them. What we'd like to do is show the evidence that scientists have to show comparisons and to show the transitional features that the Pandas authors say do not exist. So, for example, the text in the upper left taken again from Pandas insists in blue that no transitional species have been recovered. Q. Could you read that please, that quote? A. It says, How many different transitional species were required to bridge this gap? We don't know, but we do know that no such transitional species have been recovered. Now, here, of course, we're going to focus on what are you defining as a transitional species? Does it have to be a direct ancestor, does it have to be intermediate in all features? Do you have to know that it had the same genetic antecedent composition and therefore could only have been the great, great, great, great, great, great grandfather of the next animal along the way? That seems like a very difficult standard of evidence to live up to. We can't do that with humans most of the time, and I'd be surprised if we could do it with animals that are 350, 400 million years old. The next slide looks a lot like the one you just saw. The Pandas authors say in blue that there are two large gaps in the fossil record that we're talking about here. One is between ordinary fish and Crossopterygians, what they would regard as the organisms that are closest to the land animals, and an even larger second gap between these lobed-finned fish and amphibians, again, the transition to life on land. This slide just points out where the ray-finned fish are on the left. Ray-finned fish include the 25,000-odd species of fish that live today that we would all think of as fish, that is, tunas, trout, salmon, monkfish, angler fish, catfish. It would not include sharks, for example, which are cartilaginous animals. And it doesn't include any of the animals you see running along the right side of this slide. No one thinks that an animal like a trout directly gave rise to an animal like a frog. Q. When you say "no one," no one in science? A. No one in science, but I don't think any creationist obviously wouldn't think so, either. But scientists don't think this. Rather, we find that ray-finned fishes, this great radiation of 25,000 species today reaching back into the remote past, have a long history that's independent from the other watery creatures, so to speak. And, in fact, their histories are quite separate. The two little crosses below the ray-finned fish and the two little crosses to the left of the lungfish are representations of two pairs of fossil species are that listed on the right-hand side. We call them stem taxa because they are ancient relatives. Their names here, just for a couple of examples, Moythomasia and Howqualepis. The names are really unimportant. And on the other side, Psarolepis and Achoania. Again, the names are unimportant. But it just goes to show you that we have extinct relatives outside the lungfish. We have extinct relatives outside the ray-finned fishes that indicate that the ray-fins are not directly ancestral to the lungfish and all the other animals on the right side. They are rather a separate evolutionary branch, and they have been since way back in the Devonian, 400 or so million years ago. The next slide talks a bit about another transition here where the Pandas authors note that fins must have transformed into four limbs, which is certainly fair enough, but they say that no such transitional species have been recovered. Well, again, here is this cladogram that you see here. And I want to stress, as I did before, that the cladogram in question, that is, the way that we have -- the way that we have developed the relationships of the lungfish, the Eusthenopteron, Panderichthys, and all the other animals on this slide are not just based on a couple of features, they're based on dozens and dozens and dozens of skeletal characters of which we're only going to show a few. But this is backed up by a lot more evidence in peer-reviewed publications that I'll show you at the end of this. The Pandas authors say that no such transitional species have been recovered, but, in fact, we have indications here, beginning with Eusthenopteron, of a limb that is a very interesting limb with branching bones in it. Q. I'm sorry, the photograph just below the blue text on Pandas there, what is that? A. That's a photograph of a limb of Eusthenopteron. And you'll have to excuse me, I'm showing you some Paleozoic road-kill. That's the best way I can describe it. It's pretty ugly. But I wanted to show you the actual fossils so you could see that we have them and then to show you next to that a drawing of what these bones actually are. This doesn't look much like an arm of any animal today, but scientists have been able to compare the elements, which we've put here in the same colors, by the process of homology, which I'll talk to you about later. And there really is no dispute about the fact that these are, in fact, the precursors of limbs that we see in animals today, the same kinds of structures, the humerus here in yellow, the radius, and ulna, which are, I guess, in green, and then some of the features that become parts of the hand and the other digits in a darker color there. You can also see that in the course of evolution, animals that begin having eight digits, such as Acanthostega here, reduce to seven digits, to six digits, and to five digits. I don't know how we could find anything more in the way of transitional forms or features unless we went to six and three-quarters or five and a half digits. But, I mean, that may be as good as we'll get in the fossil record in terms of a transition. So we do have a very clear change, not just in the reductions of digits, but you'll also notice that they look a lot more digital-like the closer you get to the animals that we recognize as living amphibians and so forth. In contrast, above, when Pandas teaches this to students, it gives them two animals and invites them to draw contrasts. It essentially does not identify any of the bones, does not indicate that you could have any identification between those two bones, places them in different positions, reconstructs an outline for them that may not be unreasonable, but it's certainly in a different orientation. And its function, the cumulative effect is really to sort of confuse students, and certainly I'm confused looking at it about what I'm supposed to take out of a diagram like this, except the fact that, boy, these are different, and I don't see how we could get from one way to the other. It would have been so much nicer if they had used a diagram like the one at the bottom or acknowledged that we did at least have some transitional features that we could discuss. Q. And that's Figure 4.9 from Pandas at the top of the slide? A. That is Figure 4.9. The next slide is another feature. The Pandas authors, as noted before, said the skull had to change from two parts to a single solid piece, but, again, no such transitional species have been recovered. Q. And, I'm sorry, that's what Pandas authors say? A. That's what Pandas says, yeah. But as you can see, on this slide we can go easily from two mobile parts to two immobile parts to two parts that are fused and lack a ventral gap, that is, a one-part skull, to all the remaining vertebrates which have a one-part skull. This is a perfectly reasonable transition, morphologically and physically, and it's difficult to see how you could become any more transitional than this. Q. So these are transitional fossil forms that have -- A. These are drawings of actual specimens and reconstructions of them from the scientific literature. The next slide I think will indicate that although the Pandas authors say that the hipbones had to enlarge and become attached to the backbone, no such transitional species have been recovered, according to the Pandas authors. But we can see, moving from Eusthenopteron up through Acanthostega and Icthyostega, that, in fact, you can go from small, unattached hind limbs and hipbones to become somewhat larger as you can see in Acanthostega and attached to the backbone by what we call a sacral rib. Our sacroiliac is the human equivalent of that. And as you can see in Icthyostega and other animals, it gets even larger, expanded and attached to the backbone as these animals begin to use their limbs more in support of the skeleton. And as they come out on land, this will be even more important, as it is, of course, in the living animals which -- almost all of which have at least two sacral ribs attaching to their backbones. So I think the next slide is just a depiction of some of the references from the scientific peer-reviewed literature from which the slides I've just shown you have given us the information. Q. Could you just maybe read a couple of the titles into the record, please? A. Yes. Fins to Limbs, What the Fossils Say, that appeared in Evolution & Development. Again, you can see where paleontology and developmental biology are seeing a great cooperation and a great number of new insights. From Fins to Fingers, again, a paper published in Science by Jenny Clack, who is a paleontologist at Cambridge. Fish-Like Gills and Breathing in the Earliest Known Tetrapod. So we can actually find fossil evidence even of some soft tissues which tell us a bit about these sorts of things. And I'd like to point out that these works are published in Nature, in Science, in the Bulletin of the British Museum of Natural History, and in the Philosophical Transactions of the Royal Society of London, among other publications. Q. Dr. Padian, I note that some of these articles appear to be pretty old, for instance, Fins to Limbs appears to have been published in 1969, Bulletin of the British Museum is 1984. These were published before Pandas was written. A. Yes. Q. So the fact that there were, in fact, transitional fossils is something that was known to scientists at the time Pandas was being written and was published? A. Yes. There were many fossils that had transitional features that were available in the scientific literature, as scientists understood them. And so for whatever reason, these were not included by the authors of Pandas. Perhaps they didn't accept it as evidence. Q. And do you know why in Pandas they would misrepresent, it seems, or not accurately portray the state of scientific knowledge at the time? A. Well, the Pandas book, as noted, promotes the view of intelligent design, which they state here means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings, et cetera. I believe this is from maybe Page 99. Q. That's right. And what you've just shown us is an evolutionary pathway? A. Well, this is sort of worrisome, because scientists would interpret this as an evolutionary pathway, and intelligent design seems to be excluding the possibility that you can actually get those pathways. Now, we should note that as you pointed out, some of those publications I just showed were available when Pandas was written and some of them appeared afterward. But it worries me that students would be told that they have to make a conclusion in advance of all the evidence that you can't get from A to B, essentially, by natural means. This quotation from Pandas says, Should we close our minds to the possibility that the various types of plants and animals were intelligently designed? This alternative suggests that a reasonable natural cause explanation for origins may never be found and that intelligent design best fits the data. And so the question I would have is, what is a kid supposed to think when you tell him that you can't get from Point A to Point B and then evidence is uncovered that shows that, well, in fact, it looks pretty conceivable you can get from Point A to Point B and we're not making up this stuff. Is a student supposed to say, well, gee, I guess there's no designer? Or is the student supposed to say, well, I guess the methods of intelligent design are really not very good? Or is he supposed to conclude something else? The intelligent design proponents provide no guidance on this. Q. So when Pandas asserts that fish must have been created abruptly intact with fins and scales, really science has refuted that proposition? A. Yes. Q. And in the passage which I think virtually every expert witness has focused on in this trial, Page 99 to 100, when they talk about fish being formed abruptly and the other animal that's mentioned there is birds with wings, feathers, and beaks already intact, can you talk to us about whether or not there is an evolutionary pathway, natural explanation for the evolution of birds? A. Well, I'd be delighted to, if I can look at the next slide. As it turns out, when I went to graduate school, my advisor there, John Ostrom, is the person who actually established the origin of birds from carnivorous dinosaurs. And this became very well accepted over the next several years. We are now 30 years on into that, and it is one of the great achievements of 20th Century paleontology and that kind of science. And I did work on this myself in the course of 30 years of research, the origin of birds and the origin of flight and of feathers. And so I'd like to show a little bit about what science has understood about this. The next slide, I believe, gives you two quotes from Pandas, along with a picture of Archaeopteryx, which is the first known bird. It's about 150 million years old. It comes from Germany. It's a beautiful fossil. This is the Berlin specimen. It's known from a number of specimens, seven or eight now. And as you can see, it's got beautiful wings, feathers, look very modern in their appearance, and yet Archaeopteryx has a long bony tail, its skull still has teeth, it's got various configurations of bones that we don't find in birds today. Many of the bones of its hand and foot are not fused like the bones of living birds. And so it's been known since its discovery in the 1860s, the time of the Civil War, right after Darwin published the Origin of Species, that scientists have accepted this as an animal that shows a lot of intermediate characteristics between birds and other animals, particularly certain kinds of reptiles. Q. And what does Pandas say about this? A. Well, Pandas says that there is no gradual series of fossils that lead from fish to amphibians or from reptiles to birds, rather these animals are fully formed. Q. And you were quoting from Page 106 of Pandas? A. 106, yeah. And that's one problem that they come up with. And a second problem that they talk about on Page 22 is that -- is their bemoaning the lack of fossils that show scales developing the property of feathers. They say, then we would have more to go on, but the fossil record gives no evidence for such changes. I've picked out these two quotes because I want to emphasize that in the first case, there was very good evidence for the evolution of birds from dinosaurs when they wrote Pandas. And in the second case, they were right at the time, we did not have very many fossils that showed anything about the origin of feathers. But in the past decade, we've had a bunch of remarkable fossils that have. And so this raises the question again of, if you tell children that you can't get there from here and then evidence is found, what are you going to do? The next slide, I believe, talks about some of the -- this is really just a montage of a few, I mean, it's just a very few of the papers about feathered dinosaurs, dinosaurs that are not birds, they didn't fly, but they had various kinds of very rudimentary feathers. And these have been discovered in a remarkable deposit in Northeastern China, the first one in 1996, so this was after Pandas was written. And so we wouldn't expect those authors to know anything about these discoveries, but it just goes to show that there are some really interesting things that crop up. Q. And could you just read into the record the titles of some of these? A. An Exceptionally Well-Preserved Theropod Dinosaur from the Yixian Formation of China. This is a dinosaur with feathers. The next one is Two Feathered Dinosaurs from Northeastern China. Another one here is Branched Integumental Structures in Sinornithosaurus and the Origin of Feathers. Q. In what type of journals were these published in? A. These happen to be taken all from the journal Nature, which is one of those two magazines that I noted that all scientists are going to read every week. They're the most prestigious journals to publish in. Q. And what you're going to show us now about the evolution of feathers is taken based on these peer-reviewed -- A. These and many others, yes. In the next series of slides, if I may, I'd like to show you three things going on at once, because I want to tell you that this is not simply a matter of speculation or of isolated observation and inference, that this comes from independent lines of evidence, not just the fossil record. What I've done in this series of slides is to take, on the left, one of those hat rack cladograms that show you the relationships of organisms, and again I've turned it on its side. So you can see that Archaeopteryx and modern birds are on the bottom, and that successively the groups above them are various dinosaur groups that are closely related to them. I want to stress that this scheme of relationships, again, is based on dozens and dozens of characteristics that are not controversial to any extent in the scientific community, and whereas we do have uncertainties about some of the minor relationships among these animals, this is the scheme that is generally accepted by paleontologists. On the upper right, I want to show you a series of pictures that were taken from an article in Scientific American that reflects the work of Rick Prum at Yale and Alan Brush and Scott Williamson and their coauthors on the development of feathers, that is, how feathers develop in living birds. And the reason for doing this is to couple this with a series of slides I'm going to show you on the bottom, which are of fossils of feathered dinosaurs, that is, dinosaurs that are not birds but that have feathers or some structures that are rudimentary feathers. And what I want to show you is that as we proceed on the left up the tree leading to birds, we will also see that the feathers that are found in these little carnivorous dinosaurs in the lower right are becoming more and more complex and that they are reflecting the complexification of feather structure seen in the series of diagrams in the upper right as feathers develop embryologically. So we're actually looking at phylogeny or relationships on the left, we're looking at fossils on the right, and we're looking at developmental structures and embryology on the upper left -- upper right, I mean. Fair enough? Okay. Then in this stage, we see a little animal in the lower right, and that black fuzz that seems to be going along its backbone is recognized as the most basal traces of things that are going to become feathers. And these structures are hair-like. They look like the structures in the upper right. There has been observation suggesting that they are even hollow in their structure. And we find these at that point in the cladogram noted at Stage 1 on the left-hand side. The next slide should show us Stage 2. Now we've just jumped up a notch in the cladogram. And here we're beginning to find not just these single filamentous features, but also feathers that begin to branch and begin to have different kinds of tufts involved with them. The specimen on the lower right I realize is a road-kill and it's difficult to interpret, but let me see if I can just give you a sense of -- there we go. Down here we have bones of the backbone, tail. And these black and white marks up in here are remnants of these branched, feathery structures that appear in these dinosaurs. The next slide shows a further complexification of feathers in the next step up on the cladogram toward birds in which we have a gaggle of feathers there in the center. These are just a group of feathers that have, as you might be able to see, a central sort of stalk where you can see all these things gather in the middle. You can see this happening in the early development of a feather in the upper right. And then you see the feather differentiating into veins along a central stalk, just like you see in the next stage of the development of a feather in a bird that lives today. The next slide, again, at this stage we also see another kind of feather that is a feather that is organized very well into veins on each side. And these veins are very well organized along the central stalk. In this fossil I've shown you in the middle, you can see perhaps faintly the outline of these black and white structures radiating off along this white stripe, which is the central axis of the feathers. And so these are several feathers from the tail of one of these animals that are just bunched up right next to each other in one of these fossils. And, again, this is mirrored also in the progress of development from the feather from a single follicle bud up to a complete feather that we'd see today. The final stages I want to show you as we get closer to birds is a feather in which the veins are asymmetrical, that is, one side of the feather is bigger and the other side is smaller. And this is seen in birds today, but it's also seen in some of the other carnivorous dinosaurs that are close to birds, but not in all of them. So, again, what we're seeing is as we move up the cladogram towards birds, we go from the simplest filamentous feathers up to more complex structures that are then gathered and around a central stalk that produce veins. These are interlocked by barbs and barbules, and they eventually become the aerodynamic structures that birds use in their wings. But I'd like to point out, if I can, in the next slide that the obvious question is, what are they doing with these feathers before they're flying? And the evidence that we found in the fossil record in the last ten years indicates beyond any reasonable question that feathers did not evolve for flight. Flight was an afterthought for birds. They somehow acquired that adaptation later on. What do we know about those first little hairy feathers that we're looking at? Well, one thing we know is, if you put a fur coat on somebody, they're going to stay warmer. And this little covering of dense fibers is going to give you insulation. That tells us something about the metabolic status of these animals even then. Another thing is, you may have noticed some dark and light color patterns on those feathers. The fossils preserve this. What good are color patterns? Well, on these animals, they could serve as camouflage, as display, or even to help them recognize species. I'm going to show you another function in a second that indicates that these animals were also using the feathers to shelter the eggs as they brooded their young. And these are all examples of what we call exaptation and evolution. And by that I mean that a structure evolves for one purpose, but it's selected, in turn, to acquire a second purpose, without, of course, losing the first one instantly. It will retain the first one. And as it develops the second one, because it has the ecological opportunity or the pressure to do so, that second structure, that second function, may become more and more important to the structure, it may be selected to change more to accommodate this new function. And this is how exaptation works to change one kind of function into another through evolution. Q. You have at the top there, What good is a half wing? What do you mean by that? A. Well, if you just -- this is the question that has always been asked of evolutionists. St. George Mivart asked this of Darwin in the 1870s, what good is half a wing? And the answer is, well, if you don't think of it as something you have to use to fly with, you can find out other functions if you just let the evidence tell you. And these are some of the lines of evidence. I will briefly show, if I may, a couple of these other functions. The next slide provides some additional evidence of the other problem we talked about, not so much feathers, but the question of the evolution of birds. We have tremendous evidence on this, but one line of evidence comes from the hand itself. If you look at the hand of crocodiles, they have got five fingers. If you go all the way over to the left, you see Archaeopteryx, the first bird, that has only three. Well, again, here's a cladogram of relationship diagrams of how these organisms are related based on many, many characteristics. And as we move up from the crocodiles through the various kinds of dinosaurs, we see that the fourth and the fifth finger, first the fifth and then the fourth, become reduced and finally lost, until, when you get up to animals like Allosaurus, Deinonicus, and Archaeopteryx, they have only three fingers, and those are the first three fingers. The second finger is the longest, and you can see that through time, these fingers and the hand bones become even longer and more gracile. Those three fingers that you see in Archaeopteryx at the end are still separate fingers, but in birds today, they're fused up. You would know them better as the pointy part of the wing in the Kentucky fried chicken. So if you were to dissect your Kentucky fried chicken, which I don't recommend, but I can tell you about turkeys and Thanksgiving, which is a lot of fun, you will find that you can get to the individual hand bones, we can watch the bird develop, and these are individual bones that later become fused. And this is because the bird is no longer using its hand for anything except flight. It's not using its fingers to pick up things or claw or scratch anymore. And early in the evolution of birds, when they dedicated themselves to flying with the four limbs and very little else, there was no further need to use these fingers for anything, and it made more sense to fuse them into position rather than use muscles to hold them there. And this is the evidence that we have of how these organs evolve. The next slide, I believe, will give us one more thing about feathers and behavior, too. This is a dinosaur, an extraordinary ostrich dinosaur relative. It's an Oviraptor dinosaur. The name isn't important. But one thing you can see about this specimen, which is very beautiful, it comes from the Cretaceous of Mongolia, is that in the photograph at the top, I'm going to show you, here is the right arm, here is the humerus, the bones of the forearm, and three clawed fingers of the right hand. Moving over to the other side, the arm comes out here, and here are the three clawed fingers of the left hand. These white objects you see in this specimen are eggs. And here is the hind limb and the foot on the left side. Here is the hind limb and foot of the right side. Here is part of the tail. And the animal's rib cage is in here. There are more eggs underneath this animal. This critter was brooding its eggs in exactly the same position that hens brood their eggs today. Furthermore -- well, one thing to draw from this is that some behaviors that we associate with birds did not evolve with birds, they actually apparently were already present in the dinosaurian relatives of birds, and they simply were passed on to birds as they evolved. But the other thing this shows is a funny thing. The fingers, you'll notice, are spread so as to cover the eggs. And in the fossil relatives of this particular dinosaur, not this specimen because they aren't preserved, but we have feathers in other Oviraptor dinosaurs that come off the fingers that are long and gracile. And if this particular dinosaur had preserved its feathers, it would have been using them to shelter the eggs as it brooded them. This is evidence of behavior, not just of structure, that we can find very anciently in the fossil record. The next slide, I believe, shows an equally extraordinary find. And this is of a dinosaur, not a bird. He looks a lot like a bird, but he's in a sleeping position. And what is unusual about this critter is that here's its skull here with its big eye right here, and here's its little beak and its tail, bones like this. Up here are the arm bones of the left arm. And what this animal is doing -- his tail end is back this way and his front end is really to the left, but he's tucked his head and neck underneath his left arm. In other words, he's sleeping like a bird does. This is not a bird. This is a little carnivorous dinosaur that's close to birds. So, again, there is remarkable evidence that not just the structures of birds, but the behaviors of birds can sometimes be found in the fossil record and they precede birds. They actually are more general. They apply to the fossil record of many dinosaurs, as well. Q. And, again, this is all based on peer-reviewed research? A. The paper you see there is from Nature. Q. And so do scientists today understand that, in fact, birds evolved and were not created abruptly? A. In fact, that they evolved from small carnivorous dinosaurs sometime in the middle or late Jurassic period about 150 million years ago. MR. WALCZAK: You Honor, I know there have been a number of references to food here. I have one more very short topic that I'd like to cover with Professor Padian, and that will be a good place to break. THE COURT: After that point? MR. WALCZAK: Yes. THE COURT: That's fine. I thought we'd go to about no later than 12:15, but if it takes longer than that, that's fine. Let's break at whatever point you think is logical so that we don't break up the testimony unnecessarily. BY MR. WALCZAK: Q. Professor Padian, you talked about this change of function, and I think you used the term "exaptation." A. Yes. Q. Is that a biological concept that's well established? A. Yes, it is. Q. And how do intelligent design proponents deal with exaptation? A. Well, as far as I can tell, they don't really. It's very difficult for them to deal with exaptation because it implies that you can take a structure and change its function to a new function. And the whole purpose of intelligent design is to identify structures and functions that are too complex to have changed naturally from an antecedent state to a new state. I believe that the evidence that I'm providing here is trying to show that we have, piece by piece, assembly of major adaptations. I believe that we've shown that with the transition of swimming animals up into the animals that came onto land, for example, a very good transition of features step by step by step, and that it isn't like an adaptational package of land animals that had to be assembled abruptly, but rather that structures are changed in their function. So, for example, the fin of a fish moves up and down and helps it to negotiate the water, that is, to push water, pass it or to steer and do things like that in a medium that's a thousand times denser than air. How do you get from that to an animal that puts its limbs under its body and stands on this limb? Well, as we've seen, what happens in the evolution of limbs from basic fins is that these bones become stouter and stronger. Their articulations change. They begin to be able to be much more able to support weight, and they change from having a lot of those individual sort of rays that you see in any fish fin to a fewer number of things that are covered by flesh. In fact, these are the fleshy fins that we have, our hands. They're exactly the same structures. And we saw from the slides that these structures, the numbers of fingers, how they articulate, change in a very step-like pattern, not in an abrupt way at all. So the answer is that intelligent design proponents, this is the last thing they want to hear, because it would indicate to them that there are ways of getting from Point A to Point B when they want to talk about abrupt appearance and irreducible complexity. MR. WALCZAK: I'd like to end abruptly now so we could get some lunch. THE COURT: I don't know if there will be a run on chicken. But we'll break here until -- how are you proceeding time-wise? We could take an abbreviated lunch, take an hour rather than the longer lunch, or we can go to 1:30, which might be a little bit more reasonable. I'll give you a crack at that because you know how much more you have on direct and you want to save time -- I know you don't want to bring this witness back -- you want to save time, reserve time for appropriate cross. MR. WALCZAK: I'm guessing an hour, maybe a little bit more. We've got mammals, we've got whales. THE COURT: Mr. Muise, if we stopped at 2:30 or if we gave Mr. Walczak until 2:30, if we reconvened at 1:30, would that give you enough time to cross-examine? MR. MUISE: 2:30 and stop at 4:00, Your Honor? THE COURT: Well, no, we'd stop at 4:30-ish. That would give you two full hours. But if you don't think that that's going to be enough, I want to try to regulate what we're doing here. MR. MUISE: It's always hard to judge, Your Honor, you know, for cross-examination, depending on, you know, how the responses come, obviously. THE COURT: Well, I'm saying I would hold Mr. Walczak, because I know there's an issue -- this witness has come a great distance. I would hold him to 2:30. You've got to keep it within two. Now, you may not use two, but I'm saying, is that enough? Now, if you want a little over, that's fine. I'm just trying to get a fix on -- MR. MUISE: Let's do an abbreviated lunch since we want to make sure we get done. THE COURT: Let's take precisely an hour. We'll come back at 1:15. And then why don't you have a conversation during the lunch break about how you want to carve up the afternoon, because I think that's the appropriate thing to do. So, Mr. Walczak, if you don't go too deeply into the afternoon and not give Mr. Muise enough time, in the interest of not bringing this witness back -- which I think is what you're striving to do. Am I correct? MR. WALCZAK: That's right, Your Honor. THE COURT: So as a courtesy, make sure he's got enough time. All right? MR. WALCZAK: Yes, Your Honor. THE COURT: We'll be in recess until 1:15. (A luncheon recess was taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 9 (October 14), PM Session, Part 1 THE COURT: Be seated, please. All right, Mr. Walczak, you'll continue with the direct examination. MR. WALCZAK: Your Honor, one of the things we did not do was formally move Professor Padian's as an expert, and I know that defendants have stipulated to his expertise. THE COURT: Why don't you put the, I understand that, and I could refer back to this but it's easier for you to do it, state the exact purpose for which his testimony is being offered in the expert realm. MR. WALCZAK: We would proffer Dr. Kevin Padian as an expert in paleontology, evolutionary biology, integrated biology, and macroevolution. THE COURT: And then pursuant to the stipulation I assume you have no objections, Mr. Muise, is that correct? MR. MUISE: That's correct, Your Honor. THE COURT: All right. Then he's admitted obviously for that purpose nunc pro tunc. So let me ask you before you start your questioning, do you have an agreement as to how long you're going to go in order to reserve -- MR. WALCZAK: Oh, I'm guessing we have an hour to an hour and fifteen. As I told Mr. Muise, if we have to bring Professor Padian back on Monday, then it's not the end of the world and we certainly don't want to cut them short on their cross. MR. MUISE: And I'll do my best to get it done before the end of the day. THE COURT: All right. Well, we'll work with that, and you may proceed. CONTINUED DIRECT BY MR. WALCZAK: Q. When we finished we were talking about the evolution of birds, and just one last point I want to make on that before we move on to mammals. On page 99 to 100 of Pandas it makes the statement there that I think has been read previously in this trial that, "Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact," and it says, "birds with feathers, beaks, and wings, etc." Now, in fact does the fossil record show whether birds evolved with those features intact? A. You have a thing about the birds today. Dinosaur for lunch? To answer your question, it definitely doesn't show that these features evolved all at once intact, but rather in a step-like progression of features. Q. So did the birds at first have just feathers and then the other features evolved? A. We saw the simplification, we saw from a very simplified picture of all the feature that evolve in birds, but they start with very simple filamentous hair-like structures that are feathers, but if I had shown all the features of birds evolving we would have seen the wishbone appear very early before birds evolved and become a very boomerang shaped structure well before birds evolved or take flight. So that evolved for completely different purposes anyway, but birds do use the wishbone today as an anchor of some of the flight muscles. That wasn't the case originally for birds. There's just lots of features like that we could go through, sure. Q. Let's talk about mammals. One of the examples that's referenced in Pandas is the mammalian ear, inner ear. Could you talk to us about how Pandas discusses the mammalian ear and what science shows about that? And you've prepared a demonstrative for this? A. I put a couple of slides together about the transition in the evolution of the mammal ear, which is unusual compared to all the other vertebrates. The next slide I think shows a bit about this. This is going to get a little complex anatomically, but I hope it will only hurt for a minute. The bones of the middle ear, mammals have three of them. You might have heard of them as the hammer, the anvil, and the stirrup. The stirrup is a bone that's always in the ear, but the mammals have this anvil and hammer thing which are just outside that stirrup bone. These anvil and hammer bones actually correspond to bones that previously made up the upper and lower jaw joint in all the other animals, not just reptiles or anything like them, but everybody pretty much. So the Pandas authors claim that to make this correspondence is really stretching it, because they said there's no fossil record of this amazing process. Consider, that to make this change one of these bones had to cross the hinge from the lower jaw into the middle ear region of the skull. Again this is from Pandas page 121. So they're saying there's no record of this process and it would be an amazing thing to have to change. The next slide shows that there are actually many sources going back several decades that differ, and there are just a few of them there. The first one was actually an article by Romer, who was the dean of American vertebrate paleontology for half the century about a sinodaun that has an incipient mammalian jaw articulation, and I'll show you what that is in a minute. That comes from the journal Science in 1969. Here's a somewhat later paper by Edgar Allen of Madison, and now it's Chicago, on the evolution of the mammalian middle ear, and then a third one I put there is very recent piece, a little piece in Science by Thomas Marin from Germany and Gigi Lowe, who's curator at the Carnegie museum here in Pittsburgh just a few hours away, one of the great museums in the country, and they are talking about the evolution of these bones in the middle ear something that is uncontroversial as a principle in comparative anatomy of vertebrates in paleontology. Q. Now, I note that first article I believe was from 1969. A. Was. Q. So this isn't a new development? A. Oh, no. Oh, no. It's been known for decades. Q. So what you're going to show us is something that was known 25 years before Pandas was published? A. Yes, and they discuss it. Sure. The next slide I think gives some detail of what's going on here. Trying to make this as painless as possible, there are essentially two sets of bones that are involved in one animal or another in the hinge between the upper and the lower jaw, and outlined in different colors in the skull on top I think you can see an orange bone and maybe a purplish type bone, and in the lower jaw you can see a red one and a blue one. Now, this is an animal that is not a mammal. It's an ancient relative of mammals, and the jaw joint in this animal is formed by two bones, that blue one marked by a "Q" in the top jaw and the red one, which is called the articulator, in the lower jaw. So the quadrate and the articular are the two bones that in all other animals except mammals make up the jaw. The next image is of a critter called probanigmasis, which again is not a mammal. It's a little bit closer to mammals than the first guy is, and in this animal you will see that now not only do we have the articulation between the Q bone and the art bone, which is the quadrate and the articular in the upper and lower jaws, but also there is an articulation between the bone in the lower jaw marked with a "D" called the dentary and the squamosal in the skull, and this can be seen perhaps if I can rouse it, sort of in this area here where the dentary and the squamosal would meet right next to the quadrate and the articular. So these animals actually have what we call a dual jaw joint of two pairs of bones that are actually articulating next to each other on the upper and lower sides of the skull. The next slide is of morogenucidaun, which is another animal, again slightly closer to mammals, that also shares this dual jaw joint of the two bones, and the top of the two bones with the bottom I won't bother with the details, and finally the fourth slide is of a typical garden variety, garbage pail variety possum, which has now changed this articulation so that only the dentary and the squamosal bones are connected. The quadrate and the articular are no longer part of the jaw joint. So we have gone from a quadrate articular joint in which the dentary and squamosal don't participate to two animals, the second and third I showed, there are others like diarthrodnatus I could have shown, in which you have two pairs of bones sitting next to each other and articulating, making that jaw joint, to a situation in mammals, the possum is an example, but many, many mammals in the fossil record would do as well as all the mammals today in which just the new articulation the dentary squamosal is made. So you might ask what happened to the quadrate and the articular bones, and the next slide shows that actually in the course of time you can see that, again just to summarize this, this transition, the next indication is of the original condition of the quadrate articular joint only to the next condition of having both the quadrate articular and the dentary squamosal joints which is present in these two animals to only the dentary squamosal joint, and this is the way that scientists understand this transition to have taken place. The next slide gives you a sense of what this anatomy is on the inside of the ear. Now what you're looking at in the top is a depiction of the ear bones in some of early mammals. Now, if you can see where the pointer is pointing here on this upper right diagram, this long structure here with a big hole in the middle is called the stapes, and this is an ear bone that connects up to the eardrum in the inner ear, this little funny snail shaped thing, this bone, the stapes, has been in animals ever since they came out on land. In fact, even the watery ancestors of land animals have this in one form or another. Next to this you'll see a little "Q" and a little "A" which are the quadrate and the articular. These are the two parts that usually that before just made up the jaw joint, but now they are making up part of the ear bone. They are connecting up to it. On the bottom when you look at this, here is this stirrup shaped bone here which we would call the stirrup next to a bone marked by an "I", which is the anvil, and the bone next to it marked by an "M", which is the malleus, or hammer. So malleus and the incus, or the hammer and the anvil, are actually the quadrate and the articular that used to be in the jaw joint, and now they are hooked up to the stapes here of the ear. They always were connected to the stapes, but now they are moved so that the hammer, or the articular, is now moved into the skull rather than being part of the lower jaw. Now, Pandas says this is a very difficult transition to make, and yet we see it embryologically and we see this in the fossil record in the transition of the jaw joints. I think the next indication on the slide will give you a picture if I may, the next I think indication is the Pandas version of this, which identifies these bones as the incus and the states. The stapes as I have already shown is the stirrup. That's always been in the ear. I'm not really sure why they call this a relocation as the incus and the stapes when it's been there when actually what is relocated is really the articular bone which used to be in the lower jaw and now is in part of the ear. So the anatomy here is a little bit confused, and I'm sure they didn't mean to do this purposely, but again if they get this wrong, how much else is wrong that we don't know about or that is not being shown to students or has not been obviously corrected in the second edition or in any subsequent work as far as I know? I think the next slide shows where the stapes is in both things. That's just so you can see where the stapes is the comparable structures. They may look different. One is much more stirrup shaped than the other, which is more rod shaped, but they're the same bone. They hook up to the same structures. Q. So again here the point that Pandas makes is that there cannot be and have not been natural processes that account for this evolution? A. And this is just an example of the kind of argumentation that's made to try to say that these transitions are difficult to make and we have no evidence for them, but as I have shown and as you have seen there has been fossil evidence going back decades that show us animals with dual pairs of bones in the jaw joints which is perfect intermediate form. It's kind of like if you had a cup in this hand and you want to transfer it to this hand, well, you could go like that, just toss it from one to the other. But if you take it in both hands and then move it this way, but for a while you've got it in both hands. That's sort of what the mammal jaw was doing. Q. Now, you've pointed out that what you have just testified about was well known 25 years before Pandas was written. I mean, that those articles were from the late 1960's. Are you familiar with qualifications or backgrounds of the authors of Pandas? A. I know them as the authors of Pandas. I know very little else about them from firsthand experience. Q. So that would be Dean Kenyon, Percival Davis, Nancy Pearcey, and Charles Thaxton. Have you ever encountered them at any meetings, paleobiology, evolutionary biology, seen any peer reviewed publications? What can you tell us about these authors? A. I can say that none of those authors or the other people I know as consulting people on their masthead, I have never seen them at scientific meetings in my fields as far as I know. I've never known them to give papers at those meetings. I've never known them to publish in the peer reviewed literature of any of the fields related to evolutionary biology or paleontology if you want to go to specifics or anything else in related fields, and I haven't seen their work cited by scientists in those fields when discussing advances in science. Q. Let me ask you the same question about two experts who will be testifying in the coming weeks for the school district. One is Michael Behe, and the other is professor Scott Minnick. Same question, are these folks who are recognized in the field? A. Not in any of the fields in which I'm familiar, but it would hold they, like the authors of Pandas, may be qualified in other fields, but as far as I understand their experience, accomplishments in the fields related to evolutionary biology, I know of no particular work that they have done that would provide expertise. Q. So you haven't seen any peer reviewed publications from these individuals involving evolutionary biology or paleontology? A. Not in those fields, no. Although I don't doubt in their own fold they might produce perfectly good work. Q. Let's take one, just more example of the evolution of mammals, and one that Pandas identifies as not being able to evolve naturally is whales, and I'm wondering if, you've prepared a demonstrative to show us how Pandas treats the whales and then explain what science knows about the evolutionary process? A. I would like to discuss this a bit if I may have the next set of slides. In Pandas, here on page 101 and 102 -- Q. Could you read that passage? A. The whole passage? Q. Yes, please. A. "The absence of unambiguous transitional fossils is illustrated by the fossil record of whales. The earliest forms of whales occur in the rocks of the Eocene age, dated some fifty million years ago, but little is known of their possible ancestors. By and large, Darwinists believe that whales evolved from a land mammal. The problem is that there are no clear transitional fossils linking land mammals to whales. If whales did have land dwelling ancestors it's reasonable to expect to find some transitional fossils." Q. End quote? A. End quote. Q. And in fact what does the science show? A. Well, some of the disturbing things about that quote is apparently that the evolution of whales is something that Darwinists believe, and again it's sort of a faith based proposition that seems to have no real evidence. The Pandas authors then go on to say that there are no clear transitional fossils. It raises the question of what they might accept as a transitional fossil, but what I'd like to show you is what some of the evidence is accepted by fossils in ways of making these transitions of features. Again on the screen here you saw some peer reviewed publications from Nature, Science, and the Proceedings of the National Academy of Science of the US A. Q. Could you just read a couple of the titles and journal articles into the record? A. A title here is Skeletons of Terrestrial Cetaceans, which are whales, and The Relationship of Whales to Artiodactyls, which are the hoofed mammals. Q. And what publication is that from? A. That comes from Nature I believe. Another article here from Science is called Origin of Whales From Early Artiodactyls, which again are the hoofed mammals, Hands and Feet of Eocene Protocedite, which is an early group of whales from Pakistan. Those are couple of examples. Q. So now the testimony you're about to give about whales, does this come from this and other peer reviewed studies? A. Yes. If I could have the next slide I can show you a bit about this. Once again we're going to use this hat rack cladogram relationship diagram, and again it's turned on its side so that you've got living cetacea, whales, on the bottom in blue. That group of whales and dolphins has a bunch of fossil relatives. The closest one are called basilosaurids. Outside them are protocetids, and there's a couple of forms from the Eocene called ambulocetis and pachycetis, and outside that are hippos, which are the closest living relatives of whales, and outside of that we've just listed some early Eocene artiodactyls, or hoofed mammals, from which we have recognized certain characteristics that are shared between hippos and whale, as odd as it might seem. The skeletons you see there are some fossils from the Eocene of hoofed mammals, members of the group artiodachtyl, the ones with the even toes, and we just put them up there to show that we do have fossils of such things. The next slide gives you a sense of hippos, which no one needs any introduction to, so we'll pass to the next slide, which is a particularly interesting set of photographic views of a skull, or a partial skull and brain case of an animal called pachycetis, the critter in the yellow, well, orange or whatever that is, outlined term, that is again closer to whales of today than hippos and the other Eocene artiodachtyls are. This is a another of some of the oldest whales which come from Pakistan, India, Egypt, that area of the world, which once was the edge of an ancient sea in the early part of the Tertiary period, fifty, sixty million years ago when all this was happening. The images on the right are photographs of one of the brain cases and skulls of pachycetis, and the reason for showing this is just to let you know, although I won't go into any detail, that what pachycetis shares with whales that live today are not that it has a blow hole or flukes or anything like that, but that it has an ear region with features that are only found in whales. And by this we infer that they share a common ancestor with the first whales. That would be fairly tenuous evidence if we didn't have other evidence, but the next slide will show you that the evidence of this animal does not make it look a lot like a whale either. It's obviously a four-legged critter. It is happy running around on the ground. It looks like a garden variety quadruped, four-footed critter that runs around doing its business, whatever it does, and except for this funny ear region you might not really get a sense of its relationship to whales. And so we note that they are quadrupedal, or four-legged, but the next slide shows you something interesting about them. That stop slide has now changed to just admit a little bit of the insights that we get from isotopes. These are isotopes of oxygen, and oxygen comes in different kind of molecular forms, and the percentage of those forms varies between terrestrial and aquatic horizons, environments, so that when we find bones that are made with oxygen elements that contain this isotopic signal, we can get an idea of whether these animals were primarily terrestrial or aquatic. In the next slide there's a little indication on this slide there, you can see that the isotopes for pachycetis demonstrates that it falls in the fresh water marine kind of realm. So we think if this evidence is correct that this animal was spending at least part of its time in water, including brackish or marine water. So it's already getting out there somewhere, but it's still a quadrupedal critter. The next slide I think is going to give you a sense of ambulocetis, which means walking whale. Again it still has legs, and as the restoration at the top shows it looks like it's perfectly okay getting around on land, but the next indication on this slide will show you that the limbs are large and paddle like. So the hands and the feet are clearly already being broadened and are apparently some use to the animal in getting around in the water, and these are actual skeletons again from the Eocene. The next slide shows you protocetids, which are ancient whale relatives that are a little bit closer than the last one was to the whales of today, and protocetids are kind of interesting. If you, the next indication I think will show that the hips on these animals have been decoupled from the backbone. That is they are no longer connected to the spinal column. Why this would be might be difficult to fathom, pardon the pun, except that these animals are probably using their backbone, moving it up and down the way whales swim in the water, and if you have your limbs encumbered to your backbone it's just going to be that much more difficult to do it. This may be part of the reason why the decoupling is there, and yet these animals, as you'll see from the next indication, still have skulls in which they're getting some increasingly whale-like characteristics, including the nostrils, which are beginning to move backward along the skull. As you know, in whales the blow hole is right up close to the eyes. The next slide I think shows that even though these animals are quite aquatic and have a lot of whale features, they still have ankle bones that are very much like the ankle bones in the hoofed mammals from which they evolved, including ankles with a double pulley joint and a lever arm off the end. Even though these animals are spending more and more time in water, they can still deal okay on lands. The next slide I think will show a basilosaurid, which is the next step toward living whales, and this is quite a different proposition. The next indication will show you where the nostrils are, they're moving even farther up along the skull, and the next indication shows you about the hind limb bones, which are again the next indication is a close-up of this, the hind limbs are now not just decoupled from the back bone, they've become extremely reduced. But as you'll notice, right in the middle of that slide is that pulley shaped bone with a little hook off it. That is the ankle. And so the ankle is still like the ankle of a terrestrial animal, a hoofed mammal, from which they evolved, even though this animal couldn't any more walk on land than it could fly. So what we're seeing here is the progression of features more and more whale-like from animals that are terrestrial and conventional land going animals through some really minor features beginning in such odd regions as the ear, which you might not expect to be one of the first things that would change, all the way down to this, the final thing we have here is the living cetacean, which looks, you know, very much like the whales of today because they are the whales of today, and they've almost completely lost the hind limbs. So this is the situation as paleontologists know it in a kind of a, you know, very vague general nutshell. Q. And this is completely contradictory to which Pandas has said? A. Well, you look at the treatment that they've given us and that we've just seen, they've told us that there are no clear transitional fossils and that the fossil record of whales is a poster child for the absence of unambiguous transitional fossils, but we think the transition is pretty good. Q. Now, most of these fossils that you have just pointed to were in fact discovered after the publication of Pandas in 1993? A. Many of them were. Some of them were still around. Basilosaurids, the last, second to last guys I showed, have been known since the Civil War. Q. Does the fact that Pandas suggests that there are no transitional fossils and kind of insert an intelligent designer as the cause because of that, what's the implication of finding new evidence where Pandas asserts a designer? A. Well, again I think it sets a very confusing message to students as well as to everybody, the public included, that I don't know what you're supposed to think from this. Either there is no designer or the methods of intelligent design are very badly flawed, but in each case it confuses rather than advances the educational purpose. Q. Well, does it also not show up a flaw in the logic of intelligent design, so the fact that we don't have transitional fossils today means the only other possibility is there must have been a designer, whereas in fact what we have no found is no, there are other possibilities we may actually find natural causes for? A. And so the fallacy is that if we don't have enough evidence for evolution, we must therefore conclude that these things had a supernatural origin. Q. What's homology? Last concept, Your Honor. A. Homology is the central concept of comparative biology. It's the idea that allows you to compare structures in different animals, the kinds of structures that enable you to say that the bone you have here that we call a humerus is a humerus in a human, it's a humerus in a bat or a goat or a bird or a frog, and this is a very old concept. The notion of homology, the ability to compare comparable parts among organisms, goes back to the 1700's. Goethe was one of the first people who developed this concept in vertebrates as well as in plants because he was besides being the author of Faust and a great poet he was also a great morphologist. He worked on plants and animals and was a great contributor to these ideas of morphology. Goethe, many of the other German scholars who worked with him, some of French scholars in days, and many of the scholars in Britain at this same time, contributed to this, including notably Sir Richard Owen, who was a little bit older than Darwin but really contemporary with him, but a complete anti-Darwinist in the sense of not accepting natural selection and not accepting the possibility of change from one species to the others in ways that Darwin and the evolutionists proposed. What is so interesting about the presentation of homology by intelligent design advocates as with creation science, scientists and so on, is that they take a concept that isn't even evolutionary and they manage to completely destroy the fundamental basis on which it's built. Let's go back to the thinking of Richard Owen. In 1846 and 1848 a man who is Darwin's bitterest enemy, he is the only man that Darwin was ever said to have hated, so he's not exactly a big fan, these guys do not form a mutual admiration society, but Owen is a cosmic morphologist, he's the greatest paleontologist and comparative anatomist of his generation, and Owen said look, we have to be able to compare structures, and we can do it on a number of different criteria. And he's not talking about evolution as saying look, this bone is a humerus because it connects to the same bones in all the animals we're looking at. Connects to the shoulder joint on the one hand, on the one arm, and it connects to the forearm bones on the other side, and that's the way we find it and that's how we can tell that this is a humerus, and this is the same in a goat. So it's in the same position, that's the first thing. The second thing is it's made of the same stuff, it's bone, and this bone -- so it's not muscle or it's not glass, it's not anything else. It's made from the same stuff, and that's another way you can tell it's the same thing. Another criterion he used is that it develops in the same way. So for example it develops along the arm primordium and it's first beginning to be formed in cartilage and the cartilage is largely replaced by bone as the bone develops in its place. So you have criteria of position, of what it's made of, and how it develops, and these are only a few of the criteria that people use. This is before people talk about evolution in connection to homology. Now, what Darwin did by publishing The Origin of Species, many more people accepted that organisms had common ancestors, that common ancestry explained the diversity of life. And now homology had a second dimension to it. That is that homology, the resemblances that Owen had talked about and many other morphologists had talked about, why were they similar? Because they were inherited from common ancestors. So common ancestry is not the rationale for homology. It's an explanation of the similarities that we see that is, that were actually established in pre-Darwinian terms by most classical scholars that we have. Q. And so homology is a very well established concept within biology? A. Yeah, and when I started by talking about how we classify things, how we make up these cladograms, we have to make sure that we're using homologous features, this is features that actually be compared and not just random features that aren't correlated to each other. Otherwise our classification systems would be invalid. Q. And what you're talking about is something that's been established not just for a few years but for a really long time? A. Hundreds of years. Q. And what does Pandas do with homology? A. It's really weird. If I can give you an example, this one here comes from their figure 5-2. This is their drawing of a dog, a wolf, and an animal called the Tasmanian wolf, which is considered by all scientists to be a marsupial and not a placental mammal. Marsupial are animals like possums and kangaroos and phalangers and koalas and wombats that are a quite a different branch from the placental mammals, humans, primates, bats, wolves, things like that. The caption here seems to make very little of the similarity between the dog and the wolf and a lot of the supposed identity between the Tasmanian wolf on the bottom, which they say in the caption is allegedly only distantly related to it. If I could have the next slide, this is what they're talking about in making these comparisons. Q. And now this is from page 29 of Pandas? A. It is. It says, "Despite these close parallels, because the two animals, that is the Tasmanian wolf and the conventional wolf, differ in a few features, the standard approach is to classify them in widely different categories." So the wolf with the dog and Tasmanian wolf with the kangaroo as a marsupial. Okay, and they're saying if similarity is the basis for classification, what do we do when these similarities conflict? The marsupial wolf is strikingly similar to the placental wolf in most features. Yet it's like the kangaroo in one significant feature, by which they mean the pouch. Upon which similarity do we build our classification scheme? Should we use the pouch or should we use everything else they're saying. So in other words, they're trying to say that the resemblances between the wolf and the dog are simply superficial, and that just because those other marsupials have pouches doesn't mean we should always classify them together. I don't think there's ever been any doubt about this since marsupials were discovered. I don't think that there has been mass confusion about marsupials versus placentals. But the next slide I think I would, if I may I would like to show you how a morphologist would look at this question. Q. I'm sorry, are those these photos taken from Pandas? A. No. These are photos taken from literature. Q. And are these reasonable depictions of what these animals look like? A. Yes. I think as mug shots they're okay. The Tasmanian wolf, the last one died in a zoo in the 1930's. I don't think we know of any living population since then. The dogs and the North American wolf of course are still around. The Tasmanian wolf is a very strange animal. You can see its stripes, its funny ears, its snout and so forth, but superficial similarities as we have seen are not the basis on which we establish science. Let's take a look at next set of slides. What we've done here is to take actual skulls from our museum. Here's a dog and a wolf. Q. And this is how scientists, real scientists would make these comparisons? A. Oh, yeah, and in each case we have taken features of the jaws and teeth just to show you the comparability among them. I don't need to run through all the features. I just want you to take a look and see that on this slide the no's and the yes's and the numbers line up pretty well between the dog and the wolf. Do you want me to go through the similarities? Okay, it's close enough for government work. Then the next one here is the North American wolf and the so-called Tasmanian wolf, and in these features again every one of them is opposite, where you get no's, you get yes's, the numbers are wrong, and the carnassial tooth we see in the wolf above is missing in the Tasmanian wolf. So in these features they're completely different. Let's go to the next slide, just looking at it the front way, which was not shown in Pandas, but the dog and the wolf, just to show that they both have nasal bones that are narrow or pinched in shape, with three incisors. The next slide contrasts the wolf with the Tasmanian wolf. The Tasmanian wolf has wide nasals and it has four incisors, which you wouldn't see from the side shot that the Pandas authors showed. The next slide shows you a few of these skulls from underneath. The Tasmanian wolf has holes in the roof of its mouth, or palatal holes, which are lacked by the dog and the North American wolf. And the next slide shows the jawbones of these animals which have an opposite number of molars and premolar teeth between the Tasmanian wolf, and the dog and wolf. Also you'll see that Tasmanian wolf has a couple of structures at the back of the jaw which we call the reflected lamina. The term is not important, but it's just a significant feature that's not present in the dog and the wolf. Well, let's do our next comparison and look at the Tasmanian wolf as it relates to the kangaroo, which we know is a marsupial. In all the features that we've been looking at so far the kangaroo and the Tasmanian wolf correspond exactly with one exception, which is that the kangaroo doesn't have three premolars, and it doesn't have three premolars because the front of its face is modified in a way that many plant eating animals are modified. They lose those front cheek teeth and they developed the very most front teeth in the skull into a cropping organism that they use to, a cropping organ that they use to crop grass and other plants. Except for that, the features of the two skulls correspond. The next one, if you like that here's the Tasmanian wolf against the possum, and although -- Q. That's another marsupial? A. Another marsupial, yeah, our garden variety possum here, and although we saw that the kangaroo didn't have those first three premolars in front, the possum does. And the possum corresponds in all respects to those features in the Tasmanian wolf. Let's go a little bit further and look at then from the front. In each case all three, the kangaroo, the possum, and the Tasmanian wolf, have wide nasals. They have a different number of incisors, but they don't have three, except the kangaroo, which has very strange front incisors. The next slide shows these three marsupials from the bottom. So I can just go back one, thank you. Shows these three skulls from the bottom. You can see that they all have palatal holes, holes in the roof of the mouth, which the dog and the wolf don't have. And the next slide I believe shows the jaws of these three animals, which everyone classifies as marsupials, which all have four molars, three premolars, except the kangaroo for reasons explained before, and they all have this reflected lamina in the back of the jaw. So what are we to conclude from this? As the next slide shows -- oh, there are genetic similarities as well. I should mention that there have been several molecular studies that leave no doubt that marsupials are not just united by the pouch. They're even united by many molecular similarities that have nothing to do with the pouch as far as we can tell. Q. Can you just read into the record the name of these articles and journals they're from? A. Sure. One is from Molecular Phylogenetics and Evolution. Its title is, "Nuclear Gene Sequences Provide Evidence that a Monophyly of Australodelphian Marsupials" by which monophyly means that they all come from the same ancestors, the australodelphian marsupials means the guys that we know that are down there in Australia and some South American mammals. Here's "An Analysis of Marsupial Interordinal Relationships," that means the relationships within the marsupials, "Based on 12-S RNA, TRN A Valine, 16-SR RNA, and Cytochrome B Sequences." So here are four different molecules essentially, and this is in the Journal of Mammalian Evolution. Here's a paper from the Royal Society of London on mitochondrial genomes. Again these are DN A that comes out of the mitochondria of cells, on a bandicoot, a brush tailed possum, confirm the monophyly of australodelphian marsupials once again. Q. Are these just a representative sample of the peer reviewed literature that's out there? A. Yes. Q. So there's many more than this? A. Yes. Q. So -- A. I think the next slide might give us an indication that in summary it's not just the pouch. It's all these similarities here that link the Tasmanian wolf to the other marsupials and exclude them from the placentals, and that probably should be brought out to students. I believe the next slide gives us an indication of -- Q. Well, let me just stop you there. So from what you have just explained to us, this homology is used to kind of systematically compare animals? A. Yes. It's a method as I said that goes back to the 1700's, looking for unusual similarities, listing all of them, putting them all together, and seeing which array of features makes the most sense. Q. And is this widely accepted in science? A. Yes. As I noted before, it's the basis by which we can do classification. Those shared features that we use for classification would not be anywhere if we didn't use the concept of homology. Q. And as we saw, Pandas seems to suggest that the classification and comparisons are arbitrary. How does Pandas use this misrepresentation of homology? A. I think the next slide might give some indication of that. It seems quite clear from their text that they prefer the explanation of special creation over descent. The highlighted passages here from page 125 of Pandas ask if there is any alternative explanation. They say yes, another theory is that marsupials were all designed with these reproductive structures. An intelligent designer they say might reasonably be expected to use a variety, if a limited variety, of design approaches to produce a single engineering solution. They say that even if we assume that an intelligent designer had a good reason for all these decisions, it doesn't follow that such reasons will be obvious to us. That's a perplexing statement, because it means that even though we have not been able to find a convincing pattern, and even though we do not know what the overarching plan is, we can still conclude that something was designed and could not have evolved. They go on to say that, "These questions can nevertheless generate research in areas we might never investigate." I think as a scientist I'd be very concerned about how you can generate research questions when you have closed off an empirical avenue of, a very conventional empirical avenue of investigation, which is that these similarities are the result of common ancestry and provide no program for analyzing what intelligent design is, what the nature of the designer is, what the rules of design are by that designer, and this is I think classically a science stopper, especially when you tell students that these ideas should be considered but then you forbid discussion, you forbid questions. Q. Now, it says in there that intelligent design should generate research. Are you aware of a significant body of scientific research on intelligent design? A. Well, before I left I checked our electronic database in biology that's available through our library that surveys thousands of peer reviewed scientific journals, and I looked for intelligent design in the field of biology and all I could find were instances where humans had for example designed ergonomic chairs. And they wanted this to be intelligent design. Okay? But they didn't say anything about a creator or that these had evolved, and obviously we don't think chairs have evolved, we know that they are designed by humans. Other instances referred to for example DN A splicing, where people are designing DNA if you will. They want to do it intelligently. Things like that, but I never saw a single instance where intelligent design had been used as a research program or even as a scientific concept. And similar studies made by other people have I believe turned up the same lack of stimulation of research in any scientific field. Q. So we hear intelligent design proponents claim that some of their propositions are testable. How do you square that? A. Well, they began by claiming that intelligent design should be considered on the same playing field with conventional science. They've had a couple of decades now to show that it should be. They don't seem terribly interested in producing reports, peer reviewed literature that will actually document that and change the scientific paradigm. So I'm not really sure what efforts they're trying to make to change the science. Q. I guess what I'm asking about is that intelligent design makes claims that are testable, and those are claims that they have made about evolution. A. I don't think any scientific society that's weighed in on this has accepted intelligent design as testable. Speaking for myself, I don't regard intelligent design as a testable idea scientifically. I regard it as a proposition of things that can't be tested scientifically but you recourse to when scientific explanations have failed. Parts of the things that are alleged to make up intelligent design or that are associated with it, such as irreducible complexity, may be a testable proposition, but let's take a look at that. Irreducible complexity on its face is a simple statement about a machine or some kind of structure that has several parts. If you take away one of those parts, then it stops functioning. Well, any 8-year-old with a broken bicycle chain knows that he can't ride around anymore with a broken bicycle chain, if that part is broken it's not going to work. No one's got a Nobel prize for that proposition. This only makes sense in the context of intelligent design when irreducible complexity is invoked as a way to assert that no structure could have evolved by natural means. Therefore, it is irreducibly complex. And as we've seen in cases where works like Pandas have asserted this, we've often found that there is evidence to the contrary that we can produce transitional sequences of things, or that the intelligent design advocates have simply left out a lot of the information probably because they do not accept it. Q. So an essential component of the intelligent design argument is that evolution doesn't work? A. That's correct. Q. And they've given a number of examples involving the fossil record, involving your fields of expertise, whether it's no pre-Cambrian ancestors or the inability of fish to have evolved or birds to have evolved or we saw whales to have evolved, and in fact what has science done with all of the scientific predictions or those assertions where evolution doesn't work or that Pandas comes -- A. Well, they've been tested by the discovery of new evidence such as fossils, such as molecular evidence, such as new evidence in developmental biology, and in a great many cases we found that the proceeding difficulties or absences of evidence have disappeared. It's an important principle in philosophy that absence of evidence is not evidence of absence. Q. But in fact the examples that Pandas has given to show that in fact evolution doesn't work have been refuted by the scientific community? A. I believe that would be the interpretation of the scientific community, yes. Q. And in fact the examples that Pandas has selected are only a very few of far more evidence that's out there supporting evolution? A. Yes. Q. And they haven't attacked those other bits of evidence? A. No. Q. But even those few bits of evidence that they have selected to argue that evolution doesn't work have largely been invalidated by empirical studies? A. In many cases we would say that we've got a much better resolution to this. I certainly don't want to present we've solved every problem. Otherwise I'd have to go home and retire. Q. We are going to try to get you home this weekend. Turn to the last slide we have here. Would you say intelligent design is a scientific proposition? A. I don't think there's anything scientific about intelligent design. As I say, I think it's a sort of idea that you recur to when your scientific explanations fail. Q. Do you think it's a religious proposition? And I direct your attention to page 122 of Pandas, and perhaps if you can read this passage into the record. A. Well, this concerns me. They say, "For the design proponent, there is another explanation of the origin of analogous features and unrelated groups." They say, "For example, the skulls of marsupial wolves and of placental wolves are similar because one particular skull best suited the requirements of both organisms." We call this idea teleology. That is, they define this as organism that's designed for certain functions or purposes. Now, when they say an organism is designed, that's maybe a statement, a static statement, it may be in the passive voice, but did someone design it. Again and again in Pandas they say that an intelligent designer has designed this for certain functions or purposes. This indeed is teleology, that things are there for, created for a certain end or purpose, and this is a philosophical and overtly religious notion that is absent from ideas of evolutionary biology. Q. So teleology is not a scientific term? A. No, not in the sense they're using it at all. Q. Dr. Padian, you are familiar with the four-paragraph statement that the Dover school district is reading to students? A. I've read it before. Q. I'm not going to ask you to critique it paragraph by paragraph, other witnesses have done that. Let me just ask you, the Dover school district's response has been it's a one-minute statement, students don't have to stay in the classroom to listen to it, you know, what's the big deal? Why are we fighting this? Why are students harmed? Why is anybody harmed by reading this one-minute statement to the students? A. Well, in my view, having educated students for thirty years, and so at a variety of levels from middle school up to graduate students my sense is that it's very difficult to constrain inquiry just by saying you're going to cut it off, and it's very difficult to say that if you just read a statement it's not going to harm anybody. It's quite clear from the evidence that's been given and from the fact that we're sitting here and by the situation that's developed in Dover, clear from news reports of people arguing with each other, parents arguing with other parents and teachers, teachers arguing with the school board, school board members arguing with each other and quitting, who knows how many bitter conversations have taken place in supermarket aisles and across telephone wires. MR. MUISE: I'm going to object, Your Honor. This is going far down the road of speculation. THE COURT: I'll overrule the objection to the extent that I'm not hearing anything that I haven't heard before, but why don't you interject a question at this point. Q. So as a science educator, as somebody who has educated students for thirty years, why is this statement a problem? A. It's clearly caused a great division in students, a great confusion. If some students are allowed to -- well, if students are required or allowed to hear a statement that is not read by their teacher, and unlike any other statement in the curriculum they may not ask questions about this and they may not discuss it further, this roping off of this kind of a statement means that it's to be treated differently. It essentially ostracizes this area of study. It makes students confused, and they do ask questions. My students ask me questions about this kind of thing all the time. I don't think you can say that by cutting off inquiry you're going to stop people from asking questions. There are questions that intelligent design raises for students, and not just about science. They are going to ask about if we have a situation where certain structures cannot evolve, that the natural processes that were perhaps created by a creator aren't sufficient to accomplish things, then what does this say about the perfection of the creation or the creator? What does this say about the ability of the creator to intervene in natural processes? If the creator can intervene, why doesn't he do so more often to relieve pain and suffering? And if this is a problem, of what good is prayer? These concern me as someone who educates students in the science realm because they're not just asking questions about science. And if we close off inquiry to students and say that something cannot be anymore discussed in science, just accept it this way, or if we make religious propositions part of the science curriculum, then you cannot prevent them from being scrutinized in ways that are completely inappropriate in my view, in the purview of natural science, which never claims to answer such kinds of questions. Q. And from your perspective as a scientist, what's the problem with this one-minute statement? A. I think it makes people stupid. I think essentially it makes them ignorant. It confuses them unnecessarily about things that are well understood in science, about which there is no controversy, about ideas that have existed since the 1700's, about a broad body of scientific knowledge that's been developed over centuries by people with religious backgrounds and all walks of life, from all countries and faiths, on which everyone can understand. I can do paleontology with people in Morocco, in Zimbabwe, in South Africa, in China, in India, any place around the world. I have co-authors in many countries around the world. We don't all share the same religious faith. We don't share the same philosophical outlook, but one thing is clear, and that is when we sit down at the table and do science, we put the rest of the stuff behind. MR. ROTHSCHILD: I have no further questions. THE COURT: Why don't we get started, we've only been at it about an hour. So we can get started with your cross, and then we'll take a break. MR. MUISE: Thank you, Your Honor. THE COURT: Why don't we try to break, Mr. Muise, in about fifteen minutes or so. That'll give you some time to get started. CROSS EXAMINATION BY MR. MUISE: Q. Good afternoon, Dr. Padian. A. Mr. Muise. Q. Sir, you just testified that you believe that this reading of this one-minute statement will clearly cause a great division in students? A. Did I say those words exactly? Q. I believe it was -- A. Something to that effect? Q. -- something to that effect, is that correct? A. Well, I don't know without looking at the transcript or what my exact words were. Q. Is it similar to those words? A. I think what I would say is it would cause great confusion among students. Q. You've never interviewed any students, is that correct? A. Ive talked to my own students. I have not talked to Dover students. Q. None of the students who may have heard this statement? A. Not the students that may have heard that statement. Q. But it's your opinion that this would cause students to ask questions such as what good is prayer? A. Yes. Q. And why is there suffering? A. Yes. Q. From reading this one-minute statement? A. Yes. Q. And that's your expert opinion? A. Well, it has a lot to do with it. Q. Sir, you're not a microbiologist, correct? A. No, sir. Q. You're not an expert probability theory? A. No, sir. Q. As a paleontologist is it accurate to say that what you are doing is essentially reconstructing the life of the past by accumulating data concerning patterns and then trying to infer processes that account for the change of life through time? Would that be an accurate description? A. That's a reasonably good statement. Q. It's reasonably based on comparative evidence, is that correct? A. Yes, sir. Q. For example, you know what the function of the feathers of different shapes are in birds today, and you would look at those same structures in fossils animal and then infer that they were used for a similar purpose in the fossil animal? Is that the sort of reasoning you apply? A. They might be, yes. That would be one line of evidence. There may be others. Q. But that's the sort of reasoning that you apply as a paleontologist? A. That's part of it, yes. Q. And you heard a lot about feathers in hair-like features. With the case of hair-like feathers that cover the body or the whole body of fossils, you infer that they are de facto insulation, correct? A. Yes. Q. And they would have to be insulation because they wouldn't simply exist on the body and not have something to do with warming or cooling, is that fair? A. And this is because they trap air. Q. And you conclude that they're used for insulation based on what we know about hair and feathers today, correct? A. Yes. Q. And that's scientific reasoning? A. That's part of it, unless we have evidence to the contrary from some other source. Q. So paleontologists make reasoned inferences based on the comparative evidence? Is that correct? A. We do our best. Q. But not all reasoned inferences made by paleontologists are correct? A. I certainly wouldn't claim that. Q. For example, your dissertation advisor John Ostram at one point reasoned that there was an intermediate state for the first wing used for flying and, that stage involved the use of these wing-like features to chase down insects, and he called it the insect hypothesis, correct? A. He suggested that as a hypothesis, that's correct. Q. And that was based on his reasoned inference from the evidence? A. Yes. Q. Now, a few scientists had another reasoned inference based on that same evidence, correct? A. Yeah. Q. And that involved moving the prey catching function from the hands to the mouth and then they're relying on these wing-like features for balance and lift, is that correct? A. Yes. Q. So that seemed to work better, correct? A. Yes, it surmounted a problem of balance. Q. So you had scientists looking at the same evidence and drawing different reasoned conclusions? A. Sequentially. Q. Is the approach to paleontology similar to how scientists consider the structural similarity in embryology? A. In what sense? Q. The same sort of reasoned inferences from structural similarities. A. Yes, with the difference that we can observe how individual embryos develop, but it's really hard to do that with fossils because you have a single specimen which is at one stage of death, and whereas in embryos of living animals we can do a lot of comparative work. Q. The sort of comparative work that was done with the Heckle embryos, are you familiar with the Heckle embryos? A. Somewhat. It's not exactly my field of the specialization history of science. I have a little familiarity with the case, yes. Q. And those were drawings that had appeared in biology textbooks for many years? A. Some versions of those drawings appeared in biology texts for many years, yes. Q. And they were subsequently determined to be fraudulent, is that correct? A. I don't know if I'd use the word fraudulent. I would say that they were certainly inaccurate. It's not clear to me that Heckle intended to show anything fraudulently, but as with the situation of the insect wing or the insect net hypothesis, when we get more evidence we get better answers, and John Ostram as soon as he heard the insect net hypothesis was, actually had a big problem with it surmounted by these guys in Arizona who very cleverly postulated what would happen with the upset of balance. He said the insect net hypothesis is dead. It did its job. And in the same way, when we get better drawings of embryos, if we know about them we'll try to use them. Q. Now, with regard to those embryos, is it your understanding they were fudged in some respect? Because you said you don't want to use the word fraudulent because -- A. Yeah, I don't know the details, Mr. Muise. I'm not an embryologist. Q. Thank you. A. I haven't studied those, I'm sorry. Q. Sir, Darwin was not the first to propose the concept of evolution, correct? A. Correct. Q. And I want to be clear on this. When we're using the term evolution in this sense, we're talking about changes over time. Life as changed over time. Is that accurate? A. That's part of it. There's also in there common ancestry of all organisms, which is a separate consideration of evolution that comes and goes, yes. Q. When we generally use the term evolution, you're saying common ancestry is similar to the general term of evolution? A. Change through time is a good one for a general explanation of evolution to be more specific. Other individuals, including Darwin, have a more precise or different definition. Darwin's I believe for example is descent with modification. Q. And that would be a reference to change over time? A. Yes, sure. Q. And I believe you testified he was preceded by others I believe it was by as much as two centuries? A. Yes. Loc Buffon, many of the previous, Lamarck had a theory of evolution very different from his. Q. But Darwin's evidence though persuaded people to accept evolution as an explanation for the diversification of life, is that correct? A. It was, even though as noted before his book was about natural selection. Q. And I believe as you have noted before, he used artificial selection as an analogy for natural selection, correct? A. Yes, I did. Yes. Q. And artificial selection is what for example a dog breeder would use to breed a variation of a particular dog, correct? A. That's correct. Q. So when Darwin was writing he was not talking about how major new adaptive changes took place. He was talking about how minor variations could be selected upon by natural forces, correct? A. Because he wanted to get people to accept the baby steps, and then he would let the bigger ones take care of themselves. Q. Right. You used that term baby steps in your report as well. That's what Darwin was taking about? A. Relatively speaking, yes. Q. And I believe you stated that he made only passing reference as to how new major adaptive types might emerge, is that correct? A. That's correct. Q. So Darwin's main concern in his writing was with the mechanism of natural selection? A. That was what his book was about, that first book. Q. Now, this mechanism of natural selection, isn't it true that it cannot be observed directly in the fossil record? A. As I mentioned when Mr. Walczak asked me, there are two ways to look at natural selection. Darwin's view of looking at individuals replacing individuals in populations is at one level, but natural selection also figures very importantly in the evolution of adaptations, and if you know that the cause of adaptation is natural selection, which by definition it is, then you can watch adaptations emerging in the fossil record, then scientist would conclude from this that they are looking at natural selection doing this, and the way we tell it's natural selection rather than something that's random is that we're looking at functional improvement, the change of functions from one thing to the other with the emergence of new types of organisms and organs. Q. Do you remember in your report you wrote a statement, "His main concern," referring to Darwin, "however was with a mechanism of natural selection, which cannot be observed directly in the fossil record." A. In his sense, yes. But as of looking at individuals and telling this fossil clam was more fit than that fossil claim or how many offspring it left. Q. Are you saying in his sense of natural selection that you can't observe that directly in the fossil record? A. In his sense of natural selection it's very difficult. Q. And I want to see if I'm following what your argument is. Is it the use of the demonstration of adaptation as a proxy for natural selection that you claim that you can observe it in the fossil record, is that correct? A. Rather than a proxy I would say it's an effect of natural selection. Q. I'm sorry, I didn't hear -- A. It's an effect of natural selection at the individual level, exactly what Darwin was talking about, but rather than seeing it at the individual level, we're seeing its effects in the wholesale transformation of lineages over time. Q. Now, is it that these effects, what you're concluding, are the result of natural selection? A. That is the standard interpretation of evolutionary biologists, because adaptation is defined as being produced by natural selection. Q. Now, you're familiar with, I'm not sure if it's a term or a concept, of punctuated equilibrium? A. Yes, sir. Q. And did that pose a significant challenge to the theory of evolution? A. No. Q. Or did it not challenge the notion, which was the prevailing notion, that the pattern of evolution is slow and yet gradual? A. That's an interesting question. When Darwin uses the word gradual, and we all accept that Darwin accepted gradual evolution, we have to remember that words meant different things in Darwin's time than they do today. The meanings of words have changed. So for example when Darwin was on the Beagle, fresh out of Cambridge, and he's traveling around the world for five years, and he goes to Chile in the course of collecting specimens on some of the days that he's off the boat, and he gets up in the mountains and he's around Concepcion, and at that time there's a violent earthquake that shakes the whole coastline. It throws buildings down, ruins the city, hundreds of people are dead. The coastline is jacked up about twenty feet in some places, leaving putrefying sea creatures clinging to the rocks, Darwin in his journal describes this as a gradual change. If you told anyone in California that earthquakes are gradual, they'd think you ought to be taken out and shot. But in that, gradual means step-like, and when Darwin was talking about gradual change, he meant equally step-like as well as proceeding slowly and steadily. So it's very difficult sometimes to interpret Darwin just by reading him through today's lenses. Punctual equilibrium is I think you're exactly right, is a different idea than there is really tiny, tiny, tiny changes that are constantly, constantly, constantly, constantly changing like this, but it amounts to the same thing, because punctuated equilibrium is a statement about how morphology in a lineage changes through time, and the empirical evidence that Niles Eldridge and Steve Gould, who proposed this in 1972, they proposed that for most of the time in the fossil record eight species, that is individuals of a particular species, not whole groups of marsupials or whole groups of whales, are going to remain static. Rather, that within an individual lineage alone that there's not going to be this, that is gradual change toward from one point to point A in a very slow and stately fashion, but rather that it's going to be pretty much business as usual, and then a fairly rapid change to another form that then becomes progressively more stable, and in the intervening years this indeed has been confirmed by a number of paleontological studies. Q. I'll let you take a look at this for reference if you'd like. In your deposition you said, "Punctuated equilibrium challenge that notion that the prevailing pattern of evolution is slow and gradual. That's a huge challenge. It was regarded as such. In fact, it was regarded as a greater challenge than his proponent suggested." A. That's right. It was regarded this way not because it challenged the paleontologists, they were happy with it, and one of the interesting things that Eldridge and Gould did when they proposed this is that they didn't say to the population biologists and the speciation biologists, they didn't say, you know, guys, look, you got the completely wrong model here. You've been thinking about this slow steady thing. Instead what they said was we've been paying attention to the wrong model in evolution because Ernst Mayr in the 1940's and 50's proposed that actually probably what's happening is you have a whole big species range, and then there's this little population on the fringe in which evolution can evolve very -- I'm sorry, in which genes and the genetic constitution can evolve much more likely than it can through the whole range of population, and that here evolution may be very fast. This may be where the new species comes in, and Eldridge and Gould said maybe now it's just coming back and taking over the ancestral range. They thought that the evolutionary biologist would be happy with this, the people that worked at the population levels and studied speciation. Instead they were apoplectic. They really didn't think that this was a mechanism. They just never had studied stasis before because, you know, if you are going to write a grant for research to study evolution, you say I want to study how things don't change, they'd think you were nuts. And so no one had really looked at it this way. So they turned the whole study on its head, and that's pretty much how it led to decades of inquiry by different kinds of scientists about it, and we're still talking about what is making these populations states of static through time. It's a great, great question. Q. So again just following up on this punctuated equilibrium question, and I think this is how you referenced it in your deposition, you said, "Basically scientists don't know whether it applies to 90 percent of the cases or 40 cases of the cases," but in either case whether you have a punctuated pattern or a gradual pattern you surmise that selection could still be working within those patterns," is that -- A. Yes. Q. Basically summarizing what you had just described? A. Selection is not excluded from working at any of those levels. It's just all this is a statement about what we'd say is morphology through time really. Q. And again you cannot observe the selective process in the fossil record, you observe what you believe to be its effects in that first selection? A. And in the case of punctuation -- Q. Is that yes? I'm not sure -- A. Yes, I'm sorry, it is a yes, but in the case of punctuation where morphology is static, population biologists, population geneticists have said that the reason that these morphologies stay stable in time is exactly because of selection, and the term they use is a certain kind of selection which is called stabilizing selection. It's a form of natural selection that weeds out the extremes that are produced in a population and canalizes the middle. So as far as population biologists were concerned, and it surprised me, they felt that they could see population processes, individual and individual, in these fossil sequences. Now, whether that's the case is not for me so say. Q. Is natural selection responsible for punctuated equilibrium? A. That's a great question. We're not really sure what happens in the transition, and as I said even in keeping a morphology static, that can be a kind of selection that we know very well from populations occurring today. MR. MUISE: This may be a good time to take a break, Your Honor. THE COURT: All right, then why don't we do that. We'll break for fifteen minutes, take our afternoon recess, and we'll return with continued cross examination by Mr. Muise after that. (Recess taken at 2:33 p.m. Trial proceedings resumed at 2:55 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 9 (October 14), PM Session, Part 2 THE COURT: Be seated, please. All right, Mr. Muise, we continue with cross examination. MR. MUISE: Thank you, Your Honor. THE COURT: Mr. Millen has returned. MR. GILLEN: My pleasure, Your Honor. There's just not enough of me to go around. THE COURT: Don't lie to me, Mr. Gillen. (Laughter in courtroom.) CONTINUED CROSS BY MR. MUISE: Q. Dr. Padian, you testified on direct about the Cambrian explosion, correct? A. Yes. Q. I want to ask you if you think this is an accurate statement. "It is this relatively abrupt appearance of living phyla that has been dubbed the Cambrian explosion." A. Yes. Q. Do you know where that statement is from? A. No. It's a reasonable one. Q. I can represent to you, and you can check as well, it's from the article that you cited on your direct testimony by Mr. James Valentine. A. Valentine. Q. Entitled Fossils, Molecules, and Embryos: New Perspectives on the Cambrian Explosion. A. Okay. Q. So other scientists use the term "abrupt appearance" in different context, correct? A. Other scientists use the term "abrupt appearance" in different context? Q. Well, there's been a lot of testimony so far, and you as well, referring to the use of the term "abrupt appearance" in Pandas, and I'm just -- I mean, you acknowledge that abrupt appearance appears if the literature in other contexts? A. Oh, may I say it means two different things? Q. I believe you just said it. A. That abrupt appearance means two different things? Yes. One thing to scientists and another thing to intelligent design proponents. Q. Let me ask you this. This was I'll represent to you a statement by Stephen Gould found in Natural History. It says, "The fossil record, with its abrupt transitions, offers no support for gradual change. All paleontologists know that the fossil record contains precious little in the way of intermediate forms. Transitions between major groups are characteristically abrupt." Do you believe that, do you agree with that statement? A. I think that Steve is talking about two different things. So I would say I would agree with his overall statement in context with that article, which I think it comes from a 1980 paper? Am I right about that? Q. 1986, correct? A. 86, okay, yes. Q. I'm sorry. June/July 1977? A. 77, okay. This is in Paloeobiology? Q. Natural History? A. Natural History. Okay, I'm getting close. I'll keep at it. Yeah, Steve was talking about two levels of understanding. One is the transition we talked about before from one species to the next which is abrupt in the shift of morphology in a lineage, and another which he says there is that in that sometimes we have transitions in the fossil record that are abrupt, and there are abrupt changes for some lineages. That is an abrupt appearance in the sense of it appears to be abrupt as opposed to abrupt appearance with no possibility of an intermediate. So we would certainly agree that we haven't worked out transitional stages for all organisms. That's absolutely true. Q. Let me ask you about this statement, "paleontologists have long..." -- strike that. "Paleontologists had long been aware of a seeming contradiction between Darwin's postulate of gradualism and the factual findings of paleontology. Following phyletic lines through time seemed to reveal only minimal gradual changes, but no clear evidence for any change of a species into a different genus or for the gradual origin of an evolutionary novelty. Anything truly novel always seemed to appear quite abruptly in the fossil record," and I'll represent to you that's from Mayr in his one long argument Charles Darwin and the Genesis of Modern Evolutionary Thought. A. Yes, Ernst Mayr there is paraphrasing Steve Gould's findings and he's talking about species levels. In other words, the level at which punctuated equilibrium applies to single lineages of one species moving to the next as we talked about before. I think he's not actually talking about the origin of things like I showed in the slides here. Q. So he's not talking about the origin of a news fossil type? A. He's not talking about things like the origins of birds and feathers and whales and getting land creatures out of that. Or I should say I can't, because I don't know all the rest of the context in question, but Ernst Mayr was not a paleontologist and did not familiarize himself with the date of the fossil record, and he was not familiar with most of the evidence I talked about today. Q. And so it's the abrupt appearance of what that they're referring to? A. In the case of what Gould is talking about with punctuated equilibrium, he's really talking about just new morphological changes that bring us new kinds of species, individual species from a lineage that was already present to a lineage that then appears in the fossil record, and he's talking about that change being relatively rapid, which Mayr would have had no problem with because we know that rapid change can happen in evolution. That's not a problem. The whole question was the lack of gradual change in the slow and steady sense. Q. And one more statement, and again I want to see if you agree with this. "The Cambrian explosion refers to the seemingly abrupt appearance of diverse metazoan groups representing a number of extent phyla as well as some problematic clades during the Cambrian period." A. That's sounds like a fair description. Q. And this is from an article I believe entitled Lower Cambrian Vertebrates from South China. A. Okay. Q. Author E.G. -- or excuse me, Shu, S-H-U? A. Okay. Q. Are you familiar with that author? A. No. Q. But that's an accurate statement? A. It's made sense to me. Q. Now, is it the case -- let me back up. Do you see the Cambrian explosion as mainly a problem of fossil preservation? A. I see it largely as a problem of fossil preservation, although the people that work on the problem more closely than I do and I accept what their findings are about it certainly say that there's a lot of evolution going on in the period of millions to tens of millions of years. Q. Are with regard to the fossil preservation, the problem is that obviously you have to read the life of the past from the preserved rocks, correct? A. Yes. Q. And obviously longer the locks lay around, the less chance you have of finding what you're looking for in those rocks? A. That's exactly right. Q. And so there are increasingly more gaps in the fossil record the further back we go? A. As a general matter of course that's true, because the rocks on the crust of the earth are continually eroded as you pointed out, and also subducted by geological processes, destroyed inside the earth. Q. Is it the case that fossil evidence suggests that many of the animal phyla which first appeared without, that first appear without evident precursors during the five to ten million areas in the Cambrian rocks? A. I think it depends on what you mean by evident precursors. You're correct that at that great distance in time it's harder and harder for us to find rocks of exactly the right age for every integral that we would love to have, but the fact is as I showed that in pre-Cambrian rocks there are already complex metazoan animals going back in some cases to as many as ninety million years before the Cambrian explosion was over. So metazoans in a sense are there. We would call them precursors. Q. So it's your understanding that there are multicellular precursors to the Cambrian fauna which are the metazoans? A. In the pre-Cambrian, yes. Q. Are there scientists who felt that these are ancestral to the pre-Cambrian fauna? A. What do you mean by the word "ancestral". Q. That they are precursors to the fauna that found in the Cambrian period. A. Well, if somebody says that they are not directly ancestral or we can't establish that they are directly ancestral but might be collateral ancestors, I think most paleontologists would be fine with that statement. The reason being that many of these animals the preservation is not great, they don't give us a lot of characteristics to work with, all those shared features that I talked about as being the scientific basis on which we read classifications. So we might see a little curly thing in the fossil record with maybe some shell associated with it, but is that really a snail when it's like a millimeter long and, you know, typical snails, you know, are bigger. I mean, are we going to call that a snail or are we going to say well, maybe that's just like some little wormy guy that lived in a tube. So we don't know all the timing, without enough characteristics we're going to look for really derived, you know, unusual characters of snails before we start hanging the label snail or direct snail ancestor on a little piece of Cambrian or pre-Cambrian shell. Q. Is that the, I don't know if I'm saying it right, the Idiacrin fauna? A. Idiacrin fauna is the soft body at the time, I'm sorry, and it's a tough thing, and these are, Idiacrin is normally a fauna of the remains of soft bodied organisms, many of which don't look at all like creatures we find much later in the record. Q. Are they considered by some scientists as ancestors to the Cambrian fauna? A. Most of the critters we fined in the Idiacrin fauna are just weird. They seem to represent early metazoan, like the word experiments is often trotted out, but it's a misleading thing, but they are animals that diverged and had a nice run, and they basically, you know, played out their string and they didn't leave many descendant for very long and finally there's nobody left, but the question of whether they contained the ancestors of the Cambrian fauna is often difficult to say. Again without proper characters we don't really know, and we can't for the ancestors of a particular group to be found. Could I give you a different example that might clarify? Q. Well, we're talking about pre-Cambrian and Cambrian fauna and the relationship, I'm trying to establish, because my understanding is that some of the work by Stephen J. Gould and Simon Conway Morris called into doubt whether or not these multicellular precursors of the metazoans were actually ancestral to the Cambrian fauna. Is that, are you familiar with that? A. To the specific animals within the Cambrian fauna, I believe they had a disagreement about parts of that. Part of what they're talking about is when you find these really weird Cambrian, pre-Cambrian forms, can you shoe horn them into existing groups or relatives of existing groups, or were they simply early lineages that simply resembled them in some respects but then became extinct, and that's again a case by case assessment by people, and the only way to find out is roll up your sleeves and go look for these characters who shared derived features by which you can establish relationships. It's really difficult to tell. For example, in the famous Burgess shale of the Cambrian, as Steve Gould has pointed out once, you know, we have a little animal there that looks like it's an ancestral chordate, and chordates are animals that include vertebrates, and if that little animal, pychea, he said if that animal had been snuffed without any relatives to continue on, whether or not it's the direct ancestor or just a close personal friend of the animal that eventually became chordates, the whole tape would have ended right there for us, but do we know about these critters? Well, you know, we just happened to find that one and that one happened to survive. So we can't always choose what we're going to find in the records when we write about the vagaries of preservation. Q. I believe you called a Cladogram? A. Cladogram, yes, sir. Q. Would it be possible to construct one of those with the metazoans to the Cambrian fauna? A. Yes. Q. But there would be a lot of questions in-between to make that connection, is that accurate? A. Well, there would be questions as to the relationship of many of the specific animals found in the pre-Cambrian, that's exactly right. Q. What would allow you then to make that connection between the pre-Cambrian fauna and the Cambrian with all of these questions? A. Because in the Cambrian fauna, in addition to animals that we're not sure what they are or who they're related to, we do have animals that we know at least are metazoans, and some of the animals that I talked about included the trace fossils, which means the kind of tracks that animals make when they wiggle along or burrow or walk. These traces well before the Cambrian show us that these animals are proceeding in this specific front to back direction, forward progression, and that therefore that their sides are symmetrical. So they're what call bilateral, they're bilaterians, and bilaterians are a subgroup of metazoans. So because we have bilaterian traces in the pre-Cambrian we can understand that metazoans were present. In the same with the embryos that I described from way, tens of millions of years before the Cambrian boundary, have the characteristics of metazoan embryos. That tells us that metazoans are present, but maybe not specifically brachiopods or clams or snails, but that some kind of metazoan is there. And unfortunately we're all sorry about it, we don't have better records of these. Q. Getting back to the writings by Gould and Morris, do they question that connection between the metazoans and the Cambrian fauna? A. That there are metazoans in the pre-Cambrian. Q. That they're ancestral. I know you used that term -- A. Oh, that these specific animals that are found in the pre-Cambrian fauna are directly ancestral to the metazoans of the Cambrian? Q. Yes. A. I think we all question that, yes. I don't remember their particular words, but many of them are clearly not directly ancestral. Q. Is that based on fossil evidence and/or the molecular systematics? Is there a molecular systematics claim to that at all? A. The molecular evidence can't tell you a lot about things. The molecular evidence is mostly used to tell you about what the approximate divergence times is of living groups of organisms and their ancestors. The fossils are pretty much what we depend on for those things you mentioned. Q. So would it be accurate to say that molecular systematics can say anything nothing about the relationships or roles of fossil organisms to each other or to living lineages? A. If you can't get molecules out of a fossil you can't assess its relationships to other fossils or to living organisms. So for example ichthyosaur were denizens of the oceans during the age of dinosaurs. They're not related closely to any known animals, but no one has gotten any DN A out of an ichthyosaur yet. So how an ichthyosaur is related to a plesiosaur or a dinosaur or how it's related to a turtle of today we really don't know. Q. Poor court reporter. There's been several I guess recent molecular analyses which would agree that whales and hippos are each other's closest relatives, correct? A. Yes. Living relatives. Q. And from this conclusion some scientists have suggested that because both kinds of animals spend time in the water that their common ancestor would have been aquatic? A. There were a couple of molecular biologists who suggested that hypothesis. Q. And the fossil records show that this inference was incorrect, is that accurate? A. The fossil record shows that that inference is apparently incorrect. Q. According to the fossil record the first hippos were terrestrial and not amphibious, is that correct? A. That is what we understand now, and furthermore that they evolved from a terrestrial group called anthracoceres that reach back to the Eocene when we have the whales first evolving. Q. And the fossil record shows that whales were fully aquatic some 35 million years before the first hippos evolved? A. That's what the fossil record tells us. Q. And that the whales, too, evolved from animals that were entirely terrestrial? A. As we showed. Q. So even if the whales and hippos are each other's closest relatives among living animals, they didn't have a common ancestor that lived in the water but rather was terrestrial? A. That is what we understand. Q. So based on this, the fossil evidence was more important than the molecular evidence for showing the common ancestor? Is that accurate? A. No. For showing the ecological condition of the common ancestor. The molecular evidence was wonderful because it showed us that hippos and whales share molecular characteristics that nobody else has, and on this basis scientists accepted that whales and hippos were each other's closest relatives. Q. But the inferences that were drawn from the molecular evidence which these molecular biologists concluded that the common ancestors had been aquatic was actually shown to be not true through the fossil -- A. Yeah, they made an inference, a hypothesis, that they just hadn't looked at the fossils, and when we were able to assess the fossil evidence and to determine as a post-doctoral student and his team did in the laboratory across from mine at Berkley that hippos actually came from anthracoceres, these other terrestrial animals from earlier, about the time when the whales were first getting started, that it was really quite clear that these animals had independent origins into water, and the hippos never become fully aquatic as far as we know. Q. And that was something that could not be determined from the molecular evidence? A. Because the molecular evidence won't tell you about the lifestyles of the old and extinct. Q. I believe you testified something to the effect that the fossil record provides strong support for evolution and has since the mid 1800's? A. Yes. Q. And again when you use the term "evolution" here, you're referring to the change over time, life has changed over time? A. The progression of life, in that sense. And increasingly through the 1800's, the idea of common ancestry. In the middle of the 1800's it was quite possible to talk about the early records of birds and reptiles and other animals in very, very old rocks from the Mesozoic era and so forth if that's what you mean. Q. Is it your understanding that intelligent design refutes the claim that life has changed over time? A. I don't think intelligent design refutes anything in science that I'm aware of. Q. Would you think ID, intelligent design, proponents don't agree with the notion that life has changed over time? A. Oh, I think as the quotes from Pandas shows, they're typical, I think that they accept some limited change within lineages. However, the diagram that I showed that for them represents the face value interpretation of the fossil record, that diagram shows straight lines from the bottom to the top without much change if any. Q. You testified about irreducible complexity, the concept of it, correct? A. I did talk about that. Q. And your characterization of irreducible complexity is that it applies beyond the molecular level of biology? A. I testified that Mr. Behe says that they don't, but that the other IDC proponents indicate quite clearly that it does. Q. And I believe with the slides that you showed, the term "irreducible complexity" wasn't used in any of those slides, correct? A. Instead the term "adaptational packages" was used, which are indications that they cannot be disassembled without not working, and that is the same concept as irreducible complexity. Q. Dr. Behe rebutted such an application in a journal article he wrote in Biology and Philosophy. Are you aware of that? A. No. Q. Is it your opinion that it's impossible to test the concept of irreducible complexity? A. No, it's possible. Q. Is it your belief that the evidence has falsified the claim of irreducible complexity? A. If the claim of irreducible complexity is made as a blanket statement, it's not possible to falsify every instance until every instance is tested. What I showed here was many instances where the examples given in Pandas which seem to suggest that evolution of complex structures such as are claimed for irreducible complexity can be tested, they have been shown that in fact we can show transitions, and that the irreducible complexity in these features is not shown. Q. In your report you reference to some study or evidence on the flagella as demonstrating Dr. Behe's claim of irreducible complexity was falsified. A. As a principle. In principle that the question of whether, of how, whether the bacterial flagellum could evolve or not is a testable question. Q. I believe from your report, this is one of the conclusions you reached, "The reasonable conclusion is that the structure we call flagella at first served the secretory purpose (and before this perhaps other purposes) and only later changed behaviorally and structurally to work in propulsion." Do you recall making that conclusion? A. Yes. Q. Would that conclusion be consistent with what Darwin's theory would predict? A. I don't think Darwin's theory would predict a specific outcome in every case. My statement simply says that if you could take one function of a flagellum in a simpler form and have that flagellum acquire a second function and become more complex in the process, much like the wing of a bird became more complex as it evolved flight, then that would be a testable proposition and it would be reasonable to conclude that's one way it could happen. Q. And is that your conclusion that that falsified based on what I just read? A. Oh, no, I don't know whether that's the way it went or not. I say it's a reasonable way to say it. Q. Do you know researchers who work on this flagellum have concluded that the flagellum came first and that the TTS was actually later derived from the flagellum? A. Some researchers have concluded that, but some researchers have concluded the opposite I believe, but again it's not my field of expertise. Q. But your reasonable conclusion, the term you use, would be the opposite of what some of researchers actually -- A. The opposite would also be a reasonable conclusion, and the question is if you test it with enough evidence maybe you'll come to a good one. Q. Two of the main concepts that intelligent design proponents advance, one is the irreducible complexity that we talked about and the other one is specified complexity, is that correct? A. Specified complexity, correct. Q. That was a concept that was advanced by Dr. William Dembski? A. Yes. Q. Do you know Dr. Dembski? A. Personally? I've met him. Q. Do you know of him? MR. ROTHSCHILD: Your Honor, I'm going to object. It's beyond the scope of the direct. MR. MUISE: Your Honor, I'm not going to go into the details. One of the points I want to bring out, he testified that they haven't published any of their works, and I'm just going to go into some of the details of what Dr. Dembski actually published without going into the details of specified complexity. MR. ROTHSCHILD: I would object to that characterization. I don't believe that Dr. Padian has testified he haven't published in any other works, but he published in lots of books and magazines, but he hasn't published in peer reviewed publications in his field of expertise. THE COURT: Restate the purpose, Mr. Muise, of the line of questioning. MR. MUISE: Your Honor, the way I understand his testimony is that they have not, they haven't published any credible materials advancing their claims in peer reviewed -- THE COURT: They? MR. MUISE: Intelligent design proponents. THE COURT: Okay. MR. MUISE: In peer reviewed literature. THE COURT: All right. I'll allow it for that limited purpose. I'll overrule the objection. BY MR. MUISE: Q. Sir, do you know that Dr. William Dembski holds a Ph.D. in mathematics from the University of Chicago? A. He does. Q. Do you understand that his ideas were published in a book call The Design Inference? A. I do. Q. And that was an academic monograph which was part of a monograph series with the academic editorial board at Cambridge University? A. I know that. Q. And the name of the series that it was published in Cambridge Studies and Probability Induction and Decision Theory, are you aware of that? A. Yes. Q. Are you aware that this book was published -- strike that. Cambridge University conducts peer reviews of the books they publish, isn't that correct? A. In some sense, yes. Q. And his book would have been one that was peer reviewed by Cambridge University? A. I do not know. Q. Does intelligent design require adherence to the claim that the earth is no older than six to ten thousand years old? A. Intelligent design as a, as sort of a dogma as it is, does it postulate a six thousand year old earth? Q. As a theory does it require adherence to the notion that the earth is no older than six to ten thousand years old? A. Wow. I don't know of any theory that requires adherence to a, certainly not a scientific theory, but I would agree with you that I think intelligent design is about special creation of things, not about the age of the earth. Q. Do you think intelligence design requires adherence to the six-day creation event that's the literal interpretation of the Book of Genesis? A. I don't believe it requires that. Individual proponents may agree with it or not. Q. Does intelligent design require adherence to the flood geology point of view advanced by creationists? A. I don't know if it requires that or not. Q. It's your understanding that intelligent design requires the action of a supernatural creator? A. I think that this is entailed because they eliminate natural forces, and if you eliminate natural forces then the supernatural is left. Now, whether they are talking always about supernatural that couldn't possibly be natural forces, that would be an item that perhaps is under disagreement by intelligent design proponents. Q. Let me ask you it this way then. Is it your understanding that intelligent design rules out all natural explanations for design? A. Well, as you saw from some of the statements that we quoted there from Pandas, they are removing natural cause explanations, they're taking them off the table and positing creative intelligence as explaining these things. In that sense I think I would have to agree with that statement that they really do require a supernatural intelligence doing that and the denial or removal of natural causes that can be discovered by conventional scientific means. Q. If I understand your testimony correctly, it's your understanding that intelligent design doesn't make any positive argument for design, only a negative argument against evolution? A. About 90 percent or more of their argument is certainly about criticism of evolutionary theory, much like creation science was. There is this bit about irreducible complexity and there is this bit about specified complexity, but there's been very little work done on it. For example, I don't know whether Mr. Behe -- sorry, Mr. Dembski has elicited a single natural example, a case where specified complexity is an explanation of a particular biological incidence in the record. Q. You said 90 percent is negative to evolution. Is that, I'm assuming that there's at least 10 percent of the argument that demonstrates a positive argument for design? A. Up to 19 if I were being charitable, I'm trying to, but I really don't see that there's very much here. If you look at Of Pandas and People there's very little evidence for a designer. It's all evidence against conventional biological concepts. Q. Have you ever read Darwin's Black Box? A. I have looked at parts of it. Q. The parts you looked at, was Dr. Behe citing to scientific evidence? A. For intelligent design? Q. Correct. A. Not that I can recall. (Brief pause.) Q. Now, when you referred to supernatural agency in your deposition you said it means, "Causes, mechanisms, processes, and influences that are not part of the normal behavior of the natural world as we know it. Things that suspend or override these processes or disrupt them or otherwise influences them in extraordinary ways." Do you still adhere to that definition of supernatural? A. I believe that would have to be supernatural as opposed to natural. Q. Would you agree that forces could exist in the natural world that we have not yet discovered, for example thermonuclear fusion, at one time we didn't know what was the force that powered the sun, but then later science discovered this force known as thermonuclear fusion? A. Sure, and now the front page in the New York Times several years ago is an article about a fifth force in gravity which is still under discussion. Q. So those examples might not be normal behavior of the natural world as we know it today? A. Well, would we say that it might be according to the natural laws and processes consistent with those, or would we have to say it would be inconsistent with those? Q. Well, I'm just asking you, that was your definition. I want to see if it fits that definition. Would those examples be considered a normal behavior of the natural world as we know it? A. Well, those, these words you say come from my deposition, and that could be if I wanted to think about it a really sort of best crafted definition I could make that would be clear to everyone, maybe some words in that definition might be confusing or ambiguous to people, but by and large I would say that's a generally good description. Q. Would you agree that this is a good general definition of a theory in science, " A theory is defined as a well tested explanation that unifies a broad range of observations"? A. Yes. Q. Would that properly define Darwin's theory of evolution? A. Yes. Q. You would agree that Darwin's theory continues to be tested as new evidence is discovered? A. Yes. Q. You would agree that Darwin's theory of evolution is not an absolute truth? A. I don't think anything in science is an absolute truth. Q. And that would include Darwin's theory of evolution? A. I don't use the word truth in science. Q. Some scientists do? A. Yes, they do. Q. Is it true that all -- strike that. Is it true that scientists still debate questions such as how new species arise? A. Yes. Q. And they still debate the question why species become extinct? A. Yes. Q. Would you agree that the origin of life is an unsolved scientific problem? A. There's always more to find out, yes. Q. Would you agree that this is an area of which there is little direct fossil evidence? A. Yes. Q. Would you agree that Darwin's theory of evolution continues to change as new data are gathered and new ways of thinking arise? A. Yes. Q. Would you agree the fossil records are incomplete? A. Yes. Q. Would you agree that Darwin's theory of evolution is complete? A. By Darwin's theory do you mean what Darwin said in 1859, or do you mean the current corpus of evolutionary theory? Q. I think some of it has been called the neo-Darwinian synthesis? A. Oh, the neo-Darwinian synthesis. Yeah, the modern synthesis. Yes, it is incomplete, certainly. Q. And even Darwin's theory as he postulated back in the 1800's would be incomplete as well? A. In the sense of natural selection not being a good process to account for a lot of evolution or that there's more to natural selection or that we haven't found all the processes yet? Q. Well, when you answered that the neo-Darwinian synthesis is incomplete, the same standard that you're applying there, would that apply to -- A. Oh, it didn't solve all the problems of course, sure. Q. I want to see if you agree or disagree with this national science education standard, "In areas where data or understanding are incomplete, such as the details of human evolution or questions surrounding global warming, new data may well lead to changes in current ideas to resolve current conflicts." A. That's certainly true. Q. So you would agree that our understanding of the data are incomplete with regard to the details of human evolution? A. They're incomplete with regard to virtually everything in evolution, as with everything else in science. Q. That would include human evolution as those standards identify? A. I would think so, judging by my understanding of the human fossil record, sure, we've got lots more to learn. Q. Would you agree that the leap from non-life to life is the greatest gap in scientific hypotheses of earth's early history? A. I'm not sure, because I'm not an expert on earth's early history before life. There may be lots of other big problems we don't know about. Q. Do you disagree with that statement or you just don't know? A. I don't know that I would agree with it because I'm just not that familiar with protozoic earth evolution. Q. Now, Pandas was published in 1993 I believe, is that correct? A. Second edition. Q. Second edition, correct? A. Yes, sir. Q. And that's the one you were citing to today? A. Yes, sir. Q. Is it your opinion that there's been no new original thoughts by intelligent design proponents since that book was published? A. Oh, I think there has been. Different works by intelligent design proponents have been published since 1993. Q. Now, those -- did you call it a cladogram? A. Cladogram. Q. Cladogram, are those essentially a phylogenetic tree? A. They're structurally a little bit different, but they're logical precursors, sure. Q. And I believe you testified that they reflect a grouping based on shared characteristics? A. Yes, sir. Q. Would those be described also, I heard the term a tree of life, would those be considered a tree of life? A. Insofar as they show relationships, the metaphor for this is tree of life. Sometimes it's shown by that, yes. In fact, there's a great web site -- Q. I'm sorry? A. There's a big web site where people are trying to assemble all the biological cladograms they have, linking them all into a great tree of life. Q. I believe you testified that no one in science thinks that a trout gave rise to a frog I think was the example you used, is that correct? A. Correct. Q. I believe you said that their histories are quite separate? A. Since about the Digonian or even earlier, sure. So for 400 million years or so. Q. Is there then just one tree of life or could there be multiple trees of life? A. Well, if we have only one reality and if we have a history to life, then it's follows it seems to me that there would be only one tree of life, but whether we can discover it in all its ramifications is probably a never ending process. Q. I want to see if you agree with this statement, sir. "The extreme rarity of transitional forms in the fossil record persists as the trade secret of paleontology. The evolutionary trees that adorn our textbooks have data only at the tips and nodes of their branches. The rest is inference, however reasonable, not the evidence of fossils." A. Steve Gould said that some years ago. Q. That's correct. Do you agree with that statement? A. No. Steve didn't know what he was talking about. On a lot of areas of paleontology he was one of our greatest scientists and thinkers and scholars as I think any of this goes, but what he knew was not perfect. Steve studied snails, and if you asked me to try to give you a full phylogeny of snails, I ain't going to be able to do it and neither is Steve. But that doesn't mean that we can't do it for other organisms or that we don't find transitions. This was just one of the things that Steve didn't focus on very closely. He was -- his trade secret is really applying to this punctuated equilibrium level of the one species and then the next species that seems to arise or split off from it. Q. Isn't the late Stephen Gould, wasn't he touted as one of the prominent Darwinian evolutionists? A. Yes, he was, the whole century. Ernst Mayr was, too, but Ernst Mayr didn't know beans about fossils, and he didn't work on macroevolution. By contrast I don't work on population genetics. I'm not going to tell you about, you know, balanced and stabilizing selection of things. That's not my area, but I think that Steve would be the first to, and Ernst Mayr would certainly say that he would acknowledge what he hadn't worked on. Ernst Mayr worked on birds. Q. Well, that quote was published in an article that was published in Natural History. Is Natural History a peer reviewed journal? A. No. And Steve was notorious. He was a great writer, but no one could take a pen to his prose. His columns were put in there, and if you touched them he was going to have a fit. So nobody edited a word. I know this from personal experience working with Steve. He was a great man, he was a great writer, but he worked on an old typewriter, didn't do drafts, he typed it out, and that was it, and he never used a computer in his life. Q. Let me see if you agree with this statement. "The most striking features of large scale evolution are the extremely rapid divergence of lineages in the time of the origin, followed by long periods in which basic body plans and ways of life are retained. What is missing are the many intermediate forms hypothesized by Darwin and the continual divergence of major lineages into the morpho space between distinct adaptive types," and that was written by Robert Carroll. A. Yes. Bob wrote that in about it was `89. Q. In an article entitled Toward the New Evolutionary Synthesis, published January of 2000? A. Okay. Yes, I think I would disagree in detail on that. Bob in some regards is restating a principle that we have understood since, well, at least the 1940's with George Gaylord Simpson, and that is that the major groups of animals seemed to diverge first. Obviously you have to the higher levels, like phylums appearing before the classes and the orders and the individual families all appear, but these things appear and then they seem to move quickly into a variety of ecological niches. There's sort of an explosion if you will, and then it starts winnowing things out, and you get less diversity as you go on through time and less production of types. That's a pattern that's been noted for many different kinds of animals through the fossil record, and I can't tell you so much about plants. Q. A couple of more quotes I want to see if you agree with. "Paleobiologists flocked to these scientific visions of the world in a constant state of flux and add mixture. Instead of finding the slow, smooth, and progressive changes Lyel and Darwin had expected, they saw in the fossil records rapid bursts of change, new species simply appearing out of nowhere, and then remaining unchanged for millions of years, patterns hauntingly reminiscent of creation." And that is from Oxford zoologist Mark Pagel writing in Nature magazine. A. Can you tell me what, from the context perhaps what years he's talking about that these scientists are experiencing this? Q. In 1999. And as I said in 1999 writing in Nature? A. I'm sorry, I mean of the -- when he's talking about the paleontologist, the paleontologists of which era is he talking about, do you know? Q. I don't know. And he's referring to paleobiologists. I don't know if that's -- A. Okay. I don't know either. I mean because I think it's quite possible that in the early days of paleontology that would be probably a more acceptable pattern than it would be later on, but I don't know. Q. And here's one in 2001 written by Ernst Mayr. "Wherever we look at the living phyata, discontinuities are overwhelmingly frequent. The discontinuities are even more striking in the fossil record. New species usually appear in the fossil suddenly, not connected with their ancestors by a series of intermediates." Do you agree with that statement? A. Well, let's parse it, there's a long, if you unpack it just a little bit, it's a long statement, and he's talking first about, if I heard you right he was talking about the living biota and how it's disconnected by forms, we don't have all the transitional forms living today. Mayr is simply restating one of the most important basic conclusions of Darwin's Origin of Species, which is that you get a branch or a bush like that, but through time selective extinction does its work and it removes all those intermediate forms, leaving those that then create artificial gaps between species, and so this was a basic, a very, very important principle of Darwin's work. In fact, the only illustration that Darwin has of the Origin of Species is a scheme, a tree of life where he's showing exactly this principle in schematic form. So as far as that applies to living biota, that's a perfectly ordinary statement that everybody knows is true. Where then Ernst changed his attention to the fossil record, then he's talking about the progression of intermediates from one form to another, that you have something progressing through the record and then there's not a lot of intermediate and then there's another form progressing through the record. If I heard you right there's a perfect description of punctuated equilibrium, which actually Gould and Eldridge took pains to credit Mayr with when they first developed as sort of being incipient in his work. So I think what he's saying there is just basic understood stuff, not anything radical. Q. In your direct testimony when you were talking about Pandas, and I believe one of the points you were talking about was the origin of feathers? A. Yes. Q. And the evidence that you cited was evidence that had come out subsequent to the publication of Pandas, is that correct? A. That's correct. Q. Now, you testified about the one minute statement that's read to the students, but I just want to explore your understanding about what may or may not actually be happening in the biology class. Is it your understanding that the theory of evolution will be taught in the ninth grade biology class at Dover pursuant to the state standards? A. I understand it's required to be taught. Q. Is it your understanding that the state standards that require students to learn about Darwin's theory evolution take a test which would include aspects of evolution? A. I gather that that is the requirement or that's the expectation for students. Q. Do you know that the book that was purchased for use in the ninth grade biology class is a 2004 version of the Miller and Levine biology book? A. That eventually this was purchased, yes. Q. And that the book Pandas that you've been testifying about today is going to be placed in the library? A. Was it originally placed in the library or in the classroom? Q. What's your understanding? A. I'm not sure. I believe I know that, or I'm given to understand that it's now in the library. Q. Is it your understanding that it's a required text for the class? A. My understanding is that no, it was rejected as a required text. I believe the teachers did not want to use it. Q. So in terms of how it's going to be applied or used in the ninth grade biology class, it's you're understanding that it's been put in the library and it's only there if students want to voluntarily go to it? A. They are recommended to go to it to learn more about other ideas about origins. Q. Is your understanding that whether or not the students will be tested on any of the concepts of intelligent design? A. I'm not aware that they will be. Q. Are you familiar with the 2004 biology book by Miller and Levine? A. No. Q. Do you know who Dr. Miller is? A. Oh, yes. Q. Do you have an understanding that the biology book covers evolution in a manner that's consistent with his status in the scientific community? A. I trust that it is. I know that Ken has always been very strong about including evolution in his book. Q. Would you, based on what you know about Dr. Miller and what he does with his science books, will you conclude that the treatment of the fossil record in the biology book would be one that would be consistent with what you believe the scientific evidence shows in the fossil record? A. Not having reviewed it I wouldn't be prepared to tell you that specifically, I'm sorry. Q. Would you have any measure of confidence based on the fact that you know Dr. Miller as the co-author? A. I think Ken would be the first person to say he's not an expert on fossils. I hope he's getting good evidence and good reviews from other people, but I haven't seen that part of the book. Q. Are you the president of the National Center for Science Education? A. Yes, sir. Q. And directors include Dr. Brian Alters, is he one of your directors? A. Yes. Q. And Dr. Barbara Forrest? A. Yes. Q. And Dr. Miller is considered one of the supporters of the National Center for Science Education? A. I believe he's on our letterhead as a supporter, scientific supporter. Q. Is the National Center for Science Education a political advocacy organization? A. No, it's not. Q. Are you familiar with the web site of the organization that you're a president of? A. Well, I must say I don't look at it every day, and I should explain that the role of the president is not to superintend the daily activities of the staff of the center, but rather to preside over the board of directors. Q. Do you have any familiarity with your web site? A. I do consult it, but I don't have anything to do with its production and I haven't memorized its contents or have I say a great familiarity with what's up there at the moment. Q. Do you know if it has a page entitled "25 Ways to Promote Science Education"? A. I do not know that. Q. Do you know if your web site encourages individuals when there's a controversy in the community of evolution to hold press conferences with colleagues, record public opinion announcements, send letters or editorials supporting evolution education to local newspapers, are you aware that your web site makes those representations? A. I don't think I've read that particular page. Q. Now, plaintiffs' experts in this case and I gather from your testimony as well have criticized intelligent design proponents for not having their ideas published in peer reviewed journals. Do you share their criticism? A. In the appropriate fields, yes. Q. Do you know who Dr. Richard Von Sternberg is? A. I don't believe so. Q. Sir, do you know if the U.S. Office of Special Counsel conducted a preliminary investigation of a complaint made by this individual that he was, that reprisals were made against him for actually publishing an intelligent design article written by Dr. Steven Meyer in the Proceedings of the Biological Society of Washington, are you aware of that controversy? THE COURT: All right, go ahead. MR. WALCZAK: It's way beyond the scope of direct, and the witness has testified that he didn't know who Dr. Sternberger is. MR. MUISE: I asked him about the controversy, Your Honor, as follow-up. THE COURT: I guess if he doesn't know him on that basis, the second question might be objectionable. He can't identify him, so how would he know? MR. MUISE: He may be aware of the controversy surrounding an article that was not published in the Proceedings, and I see the witness is nodding his head right now. So chances are he probably does have some understanding of the controversy. THE COURT: All right, I'm going to give you some latitude. I'll overrule the objection. THE WITNESS: I recognized the name when you started to explain the circumstances. Sorry, I don't mean to give you a false impression. BY MR. MUISE: Q. So you're familiar with the controversy surrounding the publication of this, what was purported to be an article on intelligent design written by Dr. Steven Meyer? A. Well, I'm familiar that there is a controversy. Q. The U.S. Office of Special Counsel conducted a preliminary investigation, and let me read you a portion of this. THE COURT: I'm going to sustain the objection now. I don't, I think that's beyond the scope. MR. MUISE: Your Honor, if they're going to complain that intelligent design proponents are not publishing articles, and his organization was identified in a preliminary investigation as placing undue pressure and influence on an organization because he accepted an article, an intelligent design article, that clearly goes to the bias, and you know, there's one thing for them to criticize and it's another thing for them to just take every effort, use all their political clout they can to prevent these articles from being published in peer reviewed journals. MR. WALCZAK: I think we've got a hearsay problem here, too, Your Honor. THE COURT: Well -- MR. WALCZAK: And it's way beyond the scope of -- THE COURT: The purpose of the question then, Mr. Muise, is to, if I understand it, and I'm not sure that I do, but help me out, you are embarking on a line of questioning that stems from a complaint that was initiated by the witnesses, by the entity, by the group that the witness is the president of. MR. MUISE: No. The complaint was, this individual Dr. Richard von Sternberg, was an editor of a peer reviewed journal in which an intelligent design article was submitted for review. He as the editor agreed to accept it. He was then, reprisals were then taken against him for doing so to the point where he initiated a complaint to the U.S. Office of Special Counsel. The U.S. Office of Special Counsel conducted a preliminary investigation, and part of the investigation revealed that his organization, the National Center for Science Education, was involved in creating, in helping the strategy to get, for the reprisals against Mr. Von Sternberg. THE COURT: Well, you can establish that by testimony I suppose. I think it's not an inappropriate line of questioning, but I guess the, ostensibly I guess it goes to bias on the part of this witness. I think I'd ask the question a more focused way, what does he know about that. MR. MUISE: And I was going to read a section of the report and see -- THE COURT: And/or what did he have to do with it. MR. MUISE: Your Honor, I think the section of the report I was going to read was going to provide the foundation for those, or the basis for those follow-up questions, whether he knows this is true, whether he had any part in that. THE COURT: Well, you've read that. I mean, by the dialogue we've just had you've gotten that in. I think it's clear now the area that you seek to get into. So I think you can hone your questions based on the dialogue that we just had, because it really goes to what he knows and what if anything he did. Isn't that what you're trying to get? MR. MUISE: Correct, Your Honor, but the dialogue we had was between the court and myself. Not between the -- THE COURT: We didn't put the cone of silence over him while we had the dialogue. I assume he heard it. So why don't you narrow your questions as according to that. I mean, everybody understands now what we're talking about. Ask him what he knows about that, and if anything what he, what part he had in it or what he did. Mr. Walczak, what do you want to say? MR. WALCZAK: If we might see what the document is that Mr. Muise allegedly is pointing to, we have no idea whether he's accurately characterizing the situation or not here. THE COURT: Well, I don't think you have to yet. I'm going to let Mr. Muise proceed. That may be necessary and maybe he's going to do that, but go ahead and see -- MR. MUISE: Your Honor, I was going to say if he doesn't believe I have a good faith basis for my question on cross examination, I have a copy of the letter from the U.S. Office of Special Counsel, I'll be happy to show opposing counsel -- THE COURT: Do you want to see that now? MR. WALCZAK: I'm not imputing that he's got a good faith basis. I do not know as I sit here whether his characterization of what that document says is fair and accurate. THE COURT: Well, that may or may not be an issue depending on the answers we get. So go ahead and -- MR. MUISE: That's party the reason why I was going to read that one paragraph, Your Honor, so there wasn't any misrepresentation about what the basis of the question was. THE COURT: What do you say about that? MR. WALCZAK: It appears to be a multipage document. Reading one paragraph out of there again I don't know whether that's taken out of context or -- THE COURT: Well, you'll have him on redirect. So why don't you share, do you have a copy, Mr. Muise? Mr. Gillen looks like he's looking for a copy. MR. GILLEN: I believe that we do, Your Honor. It's Defendant's Exhibit 282. THE COURT: All right. Then Mr. Muise, your point is well taken. Why don't you go ahead and read that at this point and I'll give you some latitude, and then proceed with your questions on that point, and at the same time plaintiffs' counsel is then alerted to the exhibit number and they can check it. Go ahead. BY MR. MUISE: Q. And just so the record is clear the acronyms that will be used, when I use the acronym SI I'm referring to the Smithsonian Institution, and the acronym NMNH is referring to the National Museum of Natural History, and I just want to read you a portion from this preliminary investigation, sir. "Of great import is the fact that these same SI and NMNH employees immediately aligned themselves with the National Center for Science Education, NCSE. Our investigation shows that NCSE is a political advocate organization dedicated to defeating any introduction of ID," meaning intelligent design, "creationism, or religion into the American education system. "In fact, members of NCSE worked closely with SI and NMNH members in outlining a strategy to have you investigated and discredited within the SI. Members of NCSC furthermore e-mailed detailed statements of repudiation of the Meyer article to high level NMNH officials. In turn, they sent them to the society. There are e-mails that are several pages in length that map out their strategy. "NCSE recommendations were circulated within the SI and eventually became part of the official public response of the SI to the Meyer articles. OSC, Office for Special Counsel, is not making a statement on whether the SI or NMNH was wrong or right in aligning with the NCSE, although OCS questions the use of appropriated funds to work with on outside advocacy group for this purpose. "This is only discussed to show that the actions taken on the part of SI employees clearly had a political and religious component. Therefore, it may lend credence to your allegations that your religion and political affiliations were investigated and made a part of the actions taken against you," and the you referring to is the Dr. Richard Von Sternberg whom this was directed to. Sir, are you aware as the president of the NCSE whether or not the NCSE had taken any of the actions that were identified that I just read to you in this preliminary investigation? A. I was not personally involved in any of those actions. Q. Do you have any knowledge of any of those actions actually taking place? A. Well, I am not sure that -- let me put it this way. I expect that there may have been communication. I was not copied on any of the communication between NCSE and anyone in the Smithsonian, but it's common for agencies as well as individuals to consult NCSE, which by the way is a tax exempt organization, not a political advocacy group as the paragraph states, when there is a question about the propriety of introduction of creationist material into for example scientific curricula or such ideas. My understanding is that Mr. Von Sternberg, is his name von Sternberg or Sternberg? Q. It's Von Sternberg. People refer to him as Mr. Sternberg as well. A. Mr. Sternberg, okay. That he was an editor for the Proceedings of the Biological Society of Washington, is that an organ of the Smithsonian Institution or the National Museum of Natural History? Q. You don't know or are you -- A. I don't know. I'm asking. Q. Well, it doesn't work that I answer questions. If you don't know, that's fine. A. Then I probably can't help you any farther, I'm sorry. That's all I know about NCSE's part in it. Q. Do you know if anyone within NCSE sent e-mails to any of members of the SI? A. I don't have any personal knowledge of specific e-mails. Q. Is Genie Scott, is she a member of the NCSE? A. She is our executive director. Q. Do you know if she just happened to be out giving a lecture on October 12th at the University of Idaho arguing against the teaching of intelligent design? A. I don't know where she was on that date, sorry. Q. Do you know Dr. Scott Mennick? A. Personally no. Q. Do you know who he is? A. I think he's going to be deposed in this case, and I think he has submitted an expert report. Q. Do you know he's a professor at the University of Idaho? A. I believe I'm aware of that. Is it Idaho or Idaho State? Idaho, okay. MR. MUISE: No further questions, Your Honor. THE COURT: Mr. Walczak, redirect? REDIRECT BY MR. WALCZAK: Q. National Center for Science Education, NCSE, is a nonprofit group? A. It's a nonprofit tax exempt group. Q. And what is the mission of the NCSE? A. The mission of NCSE is to clarify science for the public. Normally major people we clarify it would be government officials, including education officials and school boards, parents, PTA's, members of the press, and individually concerned parents and community members. Q. Is it a secret that NCSE has taken a position that creationism is not science? A. Oh, that's no secret at all. Q. Is it a secret that NCSE has taken a position that intelligent design is not science? A. No, in that sense NCSE has aligned itself with the major scientific societies. Q. And is it a secret that the National Academy of Science has taken a position that intelligent design is not science? A. They certainly have done. Q. Mr. Muise asked you about abrupt appearance, and he read a number of quotes from individuals. I believe they talked about, I don't remember the exact language, about relatively abrupt appearance in the Cambrian ear, and at one point you said the use of that abrupt appearance in scientific terms is different than the use abrupt appearance in intelligent design terms. Could you explain that, please? A. Oh, yes, of course. When we say, if a scientist were to say that a form would evolve abruptly or appear abruptly, I mean it has the appearance, that is it seems as far as our record goes to happen very quickly. But abrupt appearance in going back to creation science parlance means something quite different. Wendell Bird for example, who is a lawyer and a conservative Christian anti-evolutionist attorney, wrote a book a couple of decades ago about abrupt appearance theory. And so for him I mean it's a code word in the old style creation science, antecedent in many ways to the phraseology and the language that's often used in intelligent design that abrupt appearance means that you get these very complex groups, very distinct appearing at once, with no possibility of intermediates, certainly no evidence of intermediates in the fossil record, so that there's an implication there that there aren't ancestors and they aren't going to be found as opposed to a scientist who simply is making a statement about these things appear to come in just now as opposed to later or how rapidly. Q. The Cambrian era lasted how long? A. Oh, a few tens of millions of years. Q. So when you see a bar on a chart and it starts in the Cambrian era, does that mean it was formed abruptly on a certain minute or day? A. It means it's the first place where we find it. I should emphasize that the first appearance, the earliest appearance in the fossil record is for us a minimum early appearance because we may always be missing earlier ones, just like the last one is not necessarily the last critter to choke. Q. But you're talking about many millions of years. So you're not talk about instantaneous appearance. You're talking about in a relatively short period of time which in geological terms is in millions of years? A. If we look at the appearance in the fossil record of the major groups of marine animals, that appears over a sequence of millions of years. Q. And in geologic terms that's abrupt? A. It's really relatively fast. To give you an idea, the asteroid that hit the earth at the end of the Cretaceous period when the last dinosaurs that weren't birds and many other things died out is dated at something like 66.5 million years, plus or minus 40,000 years. That means that at a distance of 65 million years the best we can go is like 40,000 years either way for a determination. Now, 40,000 years is enough the take four ice ages, you know, from now back to the extinction of all the big Pleistocene mastodons and mammoths and Irish elks and things, do it four times and put it either way and collapse it into an instant, and we can't tell. That gives you an idea of somehow what the resolution of dating can often be. Q. Mr. Muise, asked you about William Dembski. A. Yes. Q. And he asked you about a book that Mr. Dembski published or contributed to. A. Yes. Q. What book was that? A. Is it called the Design of Life? I don't remember the -- Q. And that was published by an academic press? A. Cambridge. Q. Cambridge Academic Press? A. The Design Inference. Thank you. Q. Is that the same thing as the peer reviewed publications you were discussing this morning? A. Book publishers, even book publishers of scholarly presses publish a variety of different kinds of books. Some of them are very scholarly, some of them are not so. I happen to be on the board of editors of the University of California Press and I know sometimes they publish biographies or reminiscences or cookbooks or things like that, as well as scholarly books in semiotics and sociology and molecular biology or whatever they happen to do. So just because it's published by a scholarly press doesn't necessarily tell you what the peer review is. Also, you don't know in a specific instance what kind of understanding authors and editors have about who or how something would be reviewed. If someone who is publishing a book in a scholarly press based on my experience with UC Press and many other presses I have worked with is any indication, and an editor at the book company, the press itself, is an acquisitions editor someone who would like to do business with the press. And so the first concern is to public books that will be read, that will be good for the press to public, because they'll be discussed, one way or another drum up interest in the press, sell other books by the press. They certainly want to get scholarly works in there and they want to get things as right as they can, but you know, you're serving several masters, whereas in a scholarly journal an editor has a lot of submissions coming in, and he doesn't have to worry about selling journals. If he does he's probably not running a very good journal because people in his field are going to go for it. So he can hold authors to a standard that says well, look, if the reviewers say that you can do it, and he sends them to anonymous reviewers for this reason. Now, I think something should be pointed out here is maybe Mr. Dembski's book was reviewed by people who know about math and probability theory. I don't have a dog in that fight. I don't care or know anything about that stuff, but I do know that it's not biology. It wasn't published in a biology series, it has nothing to do with evolution biology, and so when someone said this is a peer reviewed contribution that bears on evolutionary biology, we say where's the beef. Q. So there's a couple of points there. One is that this academic press is not subject to the same peer review as for instance you described that would occur at Nature or Science? A. Not necessarily at all, right. Q. And we don't know what the peer review was for that if any? A. We don't know. I don't know. I have no personal knowledge. Q. And second, does Dr. Behe have to your knowledge any kind of degree in biology? A. I don't know what he has in biology. In terms of evolutionary biology or paleontology I mentioned I don't know of any expertise in that regard. Q. I'm sorry, I'm thinking about Professor Behe already. I mean -- A. Oh, Professor Dembski. No, I'm not aware that he has any credentials in any of the natural sciences. I believe that mathematics and theology maybe, or divinity. Q. And let me ask you that same question I asked before about the Pandas authors. Have you seen Mr. Dembski at any of the conferences that you attend? A. No. Q. Have you ever seen any presentations by Mr. Dembski made at evolutionary biology or paleontology conferences? A. No. I've never heard of him. Q. Have you ever seen any publications in your field from Mr. Dembski? A. No. Q. Mr. Muise asked you about a number of people, and in fact read you quotes from people. He mentioned Stephen J. Gould? A. Yes. Q. And it seems the suggestion was that Stephen J. Gould had some problems with evolution. It seems that you knew Stephen J. Gould? A. Yes. Well. Q. And are you familiar with his writings? A. Oh, yes. Q. Was he someone who questioned evolution? A. He certainly questioned the relative importance of various mechanisms and patterns in evolution, but not the idea that evolution had occurred or that organisms were related by common ancestry. That was a great theme of Gould's writing that he was always frustrated that anti-evolutionists were trying to make out that there was question about, among in the scientific community about whether evolution had in fact occurred, when really it was just a question of how important is punctuation versus slow and steady change and questions like that, but the overall fact and pattern of evolution was not in question. Q. And are you aware of whether Stephen J. Gould ever testified as an expert witness in a case? A. I believe he testified in McClean vs. Arkansas, was that right? Q. And would that have been a trial in 1981 about scientific creationism? A. Presided by Judge Overton I believe, yes. Q. And was he an expert witness in that trial very much in the way you are an expert witness here today? A. Yes, except he likes the Yankees and I like the Oakland A's. Q. And in fact which side of the case did he testify on? A. The Yankees. I'm sorry, he testified on the evolution side. Q. And I believe Professor Gould was one of the proponents of punctuated equilibrium? A. He and Niles Eldridge. Q. I'm not going ask you to explain it. I know you've explained it to me before. I don't fully understand it, but is that an argument against evolution? A. Not at all. It's simply an argument about what the pace of change is. Q. And in fact scientists disagree about a whole lot of things, don't they? A. Oh, yes. Q. And they disagree about a lot of things within evolution? A. Oh, yes. Q. But that doesn't mean that they don't firmly believe in the basics of evolution? A. Well, I wouldn't again use the word belief. I'd say that they accept it as the best explanation of things. My friends in the physical community argue about string theory. Some of them think it's good idea, some of them think it's nonsense. I have no idea what it is, but it's obviously something that keeps them going and it has ramifications for important understanding of the natural world. Q. And Mr. Muise mentioned Ernst Mayr? A. Yes. Q. And are you familiar with Mr. Mayr's work? A. Yes, I knew Ernst Mayr and his work. Q. Is he a proponent of evolution? A. Well, I'd say he probably is recognized as one of the foremost evolutionary biologist of the 20th century. Q. How about Robert Carroll? A. Bob Carroll is an old friend, he's one of the deans of vertebrate paleontology. He's up at McGill university in Toronto. Q. And are any of those individuals proponents of intelligent design? A. No. MR. ROTHSCHILD: I have no further questions. THE COURT: All right. Recross, Mr. Muise? MR. MUISE: I have none, Your Honor. THE COURT: All right. I thank you for your testimony, and you can have a safe trip back now with the cooperation of counsel getting your testimony in. We'll take up the exhibits in just a moment, but you may step down, sir. We thank you. All right, we have some exhibits to take both, from both of the last two witnesses, but -- MR. ROTHSCHILD: Your Honor, we have a suggestion. We have one more plaintiff who needs to testify. We expect it to be very short, and if it's agreeable we'd like to put him on. THE COURT: That's what I was going to ask. Do we want to take another witness rather than take time today? Would this be your last witness other than, you're going to take the reporters out of turn? Do I have that right? MR. ROTHSCHILD: And Mr. Buckingham out of turn and we have designations which I think will likely go out of turn as well. THE COURT: So technically you're not going to rest after this next witness? MR. WALCZAK: Correct. THE COURT: Just to be clear, but are we going to start with the defendant's case on, by agreement of counsel on Monday? MR. GILLEN: Yes, we'd like to get started. MR. ROTHSCHILD: If we could put this witness on now we would have no objection -- THE COURT: Let's go ahead and we'll start, if we run a little longer we'll start with the exhibits on Monday, we'll take care of that, so we don't belabor that today. Go ahead. MR. ROTHSCHILD: Thank you. MR. HARVEY: Your Honor, the plaintiffs call to the stand plaintiff Joel Leib. (Joel Leib was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: State and spell your full name. THE WITNESS: Joel A. Leib, L-E-I-B. DIRECT EXAMINATION BY MR. HARVEY: Q. Where do you live Mr. Leib? A. I live in Dover. Q. How long have you lived in Dover? A. I was born fifty years ago, so I've lived in and around Dover all my life. Q. Your extended family, parents and -- A. Yes. If somebody dropped a bomb in Dover that would be the end of the line. Q. How long has your family lived in Dover? A. We got here before this was the United States. Q. Do you have any children, Mr. Leib? A. Yes, I do. Q. How many children? A. I personally have three. Q. Do you have any children in the Dover High School? A. Yes. Well, in the junior high. Q. What's the name of that child? A. Ian. Q. How old is Ian? A. Ian is 13. Q. And what grade is he in? A. He's in 8th grade. Q. Is he going to attend Dover High School? A. Yes, he is. Q. And are you married? A. No. I have a significant other. Q. Tell us the name of your significant other. A. Deb Fenimore. Q. And is she also a plaintiff in this action? A. Yes, she is. Q. She is the mother of Ian, correct? A. Correct. Q. What do you do for a living, Mr. Leib? A. I'm a teacher out at Bradley Academy. Q. What do you teach? A. What do I teach? Graphic arts, animation arts, things of that nature. Q. Did there come a time when you learned that there was going to be a change in the Dover Area High School biology curriculum? A. Yes. Q. And tell us what did you learn? A. The first time I was hit with something called intelligent design that I didn't know exactly what it was. Q. When was this? A. August, September somewhere around there. I don't exactly remember. Q. Did you know that the board passed a resolution on October the 18th of 2004 changing the biology curriculum? A. Yes. Q. How did you learn about that? A. Let's see, I was kind of following the newspaper articles from the first one I had read sometime in September. MR. GILLEN: Judge, if I may just for the record, same objection we made before. Apparently the witness lacks any personal knowledge apart from what e he read in the paper, so he's not competent to testify. It's hearsay. What we're about to hear is hearsay. THE COURT: I'll note the objection for the same reason as stated previously by the court. The objection is overruled. You may proceed. Q. Please continue your answer, Mr. Leib. A. Can you repeat the question for me again? Q. Yes. You learned about the school board resolution on October 18th, correct? A. Correct. Q. And you learned about that from reading it in the newspaper, correct? A. Correct. Q. Was there any other source for you of information about the school board change to the curriculum? A. Are you referring to my conversation with Jeff Brown? Q. Yes. A. Casey Brown? MR. GILLEN: Objection, Your Honor. Hearsay. MR. HARVEY: Not offered for the truth of the matter asserted, Your Honor. MR. GILLEN: Then what's its purpose? THE COURT: Well, let's go right to the bottom of it. There's no question that the curriculum was changed, was there? MR. GILLEN: That's correct. THE COURT: So let's not stand on ceremony. MR. GILLEN: You know, I got to preserve the record, judge. If all he heard is what he heard from Jeff and Carol Brown, they were in court, they testified. But this is hearsay. THE COURT: Well, it's not hearsay if it doesn't go to the truth, and the truth is not at issue here as to the change in curriculum. Now, it may be as to other things that he would testify to, but not on that point. Is it? MR. GILLEN: No, you're right, Your Honor, that the evidence shows that the curriculum was changed. THE COURT: So at this point I think we're not in a hearsay situation, or at least -- well, I don't want to belabor this today. It's late in the day. I'll overrule the objection. MR. HARVEY: I'll try to make this easier, Your Honor. THE COURT: I think likely you can avoid some of these objection. Why don't you do that, so go ahead and proceed. BY MR. HARVEY: Q. Sure. You know that the school biology curriculum was changed to include reference to supposed gaps in problems in Darwin's theory and other theories of evolution, including intelligent design. You knew that, didn't you? A. Right. Q. And you knew that it was included to, changed to include reference to a textbook by the name of Of Pandas and People, is that right? A. That's correct. Q. You knew that the school, the Dover area school district published a newsletter in February of 2005? A. Correct. Q. Did you know that? A. Correct. Q. May I approach, Your Honor? THE COURT: You may. A. Yes, that's the one. Q. That in fact P-127, what I just handed you, that's the newsletter you received? A. Correct. Q. Mr. Leib, do you believe that you have been harmed by the Dover area school district board of directors' change to the biology curriculum and publication of the newsletter? A. Yes, I do. Q. How do you believe you've been harmed? A. Two ways. Number one, I've got a child in the school. Intelligent design is not science. Every second that he's either in the class listening to it or out in the hallway objecting to it is a second he's not getting an education and he can't be functional in a world market. These kids need education. Let me handle the religious aspect of it. Q. Do you believe that the Dover area school district board of directors' actions have affected you and the Dover community? A. Well, it's driven and a wedge where there hasn't been a wedge before. People are afraid to talk to people for fear, and that's happened to me. They're afraid to talk to me because I'm on the wrong side of the fence. MR. GILLEN: Well, that was my only objection, Your Honor. To the extent he's testifying about harm to the community, same objection as this morning. His own harm he's entitled to testify. THE COURT: Well, I think he tied it up at the end of his answer, so I'll overrule the objection. MR. HARVEY: I have no further questions, Your Honor. THE COURT: Cross examine, Gillen? CROSS EXAMINATION BY MR. GILLEN: Q. Good afternoon, Mr. Leib. A. Hello. Q. Hello. We met at your deposition. A few questions about your testimony today, the basis for you being here. I believe you testified you have a son, Ian? A. Yes, I do. Q. And I'm not sure, is he in biology class this year? A. He's in science class. It's a general science at this point. Next year he will be in 9th grade, and that will be the biology I believe. Q. Do you know whether you will tell your son Ian -- let me first, I believe that Ian is the basis of your claim in this suit, correct? A. Yes. Q. Do you know whether you will tell your son Ian not to attend the biology class while the statement is being read? A. I would prefer he didn't, but I'm also looking at him as being a relatively young adult. We're going to discuss it as we have in the past. But no, I would advise him not to be part of that. Q. Well, and that's all I'm trying to get at. You understand that he can opt out of the statement being read if wishes, correct? A. He can opt out, but that mean for that fifteen or twenty minutes he's not getting an education. That is one of my big objections. I teach a post-secondary educational class and I'm still asking people if they can read and write. That's wrong. We need to educate these kids so they can go into the world market and they can be productive. This doesn't do it for them. Q. So am I understanding you correctly, Mr. Leib, that you're testimony as to harm is if Ian steps out for however long it takes to read this statement, he's being deprived of an education? A. He's being deprived of an education, yes. Q. You have no, you're not advancing the claim based on your other children, correct? A. No. Q. You realize that the text, do you know that the text Of Pandas has been placed in the library at Dover Area High School? A. Right. Q. You have no objection to that? A. No. Q. I believe Ian has already been instructed in both evolution and creation at St. Rose School, correct? A. Correct. Q. And when you use the term creation, you mean the Biblical account of creation, is that correct? A. Correct. Q. You would have no objection to intelligent design being taught in a comparative religion class, correct? A. No. Q. Or a social studies class? A. No. Q. You just don't think it's science? A. It's not science. Q. You have no degree in science education, correct? A. I have a degree, but not in science. Q. Okay. You understand that evolution is a theory? A. Yes, I do. Q. Do you understand that it's a theory that will probably never be fully proven? A. Yes. Q. Do you understand there's a controversy about evolution theory? MR. HARVEY: Objection. Beyond the scope of direct. MR. GILLEN: Your Honor, I'm trying to get to the nature of the harm that he's positing for his son. I'm asking a few questions about evolutionary theory and I'm going to ask him if he recognizes that it's going to be taught to his son. MR. HARVEY: Your Honor, this is far beyond anything we discussed. THE COURT: I'll give him some latitude. I'll overrule the objection. THE WITNESS: Can you repeat the question for me, please? MR. GILLEN: You know what? I'm going to ask Wes. Wes, would you be so kind as to read back the question? (The record was read by the reporter.) THE WITNESS: I don't see it as a controversy over the theory of evolution. I have no problem with the gaps as you said before. It may never be totally, totally proven. Fossils don't exist everywhere. We haven't found all the fossils there are to find, nor have we done all the scientific research we possibly can do. So I don't see there's a controversy as far as evolution goes. BY MR. GILLEN: Q. Sure. The first board meeting you attended I believe was February 2005, correct? A. Correct. Q. Do you object to the fact that your son Ian, if he attends biology class, will be instructed in evolutionary theory? A. Can you run that by me again? I'm sorry. Q. I take it you have no objection to the fact that Ian will be taught evolution theory if he attends biology class at Dover Area High School. A. No. I have no objection to that. Q. Do you understand that the text Miller and Levine recognized by the science faculty is the text that your son will be assigned? A. Yes. Q. You have no objection to that text? A. No. Q. But it's your testimony here today that the reading of the statement is going to undermine science education for your son? A. Yes, this does undermine scientific education. Q. That's because you believe intelligent design is not science, correct? A. Creationism for me and for probably everybody in this room is a very personal thing. If you teach it in a comparative religion class, you talk about all religions, not just Christianity, not just Buddhism, not just any particular religion. You look at them, you compare them, you see how they are alike and how they are different. I have no objection to that. I just am telling you it is not a science. You're comparing apples and oranges, and there's no place in one for the other. It's like teaching science from the pulpit. There's no place for science from the pulpit. Q. I take it from your answer it's your understanding that intelligent design theory is creationism, correct? A. Yes. MR. GILLEN: No further questions, Your Honor. THE COURT: Redirect? REDIRECT BY MR. HARVEY: Q. Very brief, Your Honor. You testified that your son learned creationism and evolution at St. Rose's School, correct? A. Correct. Q. Do you know what class your son learned creationism in? A. Creationism was a religion class. Q. St. Rose's School was a private religious school that your son previously attended before he attended the public schools, isn't that correct? A. Correct. MR. HARVEY: No further questions. RECROSS BY MR. GILLEN: Q. Given that your son learned creationism at St. Rose's School in religion class, do you believe that he'd think intelligent design is science when he was in the classroom? MR. HARVEY: Objection, Your Honor. He's asking about what the child thinks. No foundation, and it's hearsay. THE COURT: You opened the door. I'm going to overrule the objection. I'll let him answer the question. A. I'm not exactly sure. We discussed it, but he's a typical 13-year-old. If it's not video games or the latest movie, he doesn't discuss too much about things like that. However, I'm sure that as he grows older he's going to have questions about both the science and the religion of things. I plan to be there, hopefully I plan to be there to answer some of those questions. I'm a fan of The Discovery Channel and The Learning Channel and various and sundry other programs that are scientific in nature. We have a religious curriculum that we go through and he learns about both. He learns basically religion from us, our ministers, so on and so forth, and hopefully my school is teaching him more science than I know. MR. GILLEN: No further questions, Your Honor. THE COURT: You pay your nickel and you go for a ride. That will have to be it. MR. GILLEN: And I can say with no intention to slight this witness that both his deposition and his testimony today has been quite a ride. THE COURT: So it ends. Sir, we thank you for your testimony. You may step down. That will complete the testimony for today, is that a fair statement? MR. HARVEY: Yes, Your Honor. We do have some exhibits. We can do that on Monday. THE COURT: Well, remarkably we've ended close to 4:30. I give everybody credit for that, and I can't imagine why we would torture everyone with the laborious process of attempting to admit exhibits on 4:30 on Friday afternoon. It just doesn't seem right to me. MR. HARVEY: I second the motion. MR. GILLEN: But think about Monday morning, Your Honor. THE COURT: Well, it seems so far away. MR. GILLEN: I wish. THE COURT: We'll then recess, we'll adjourn for the day and we'll be in recess until Monday morning and we will start with the first defense witness, a bit out of turn by cooperation with counsel. I'll trust you, if I forget I'll put the onus on plaintiffs to remind me to take the exhibits on first thing before we take that witness on Monday morning. Fair enough? MR. HARVEY: Very good, Your Honor. THE COURT: Anything else to good of the order before we adjourn? We'll be in recess until 9:00 Monday morning. (Court was adjourned at 4:30 p.m.)