233
1 IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
2 ATLANTA DIVISION
3
Jeffrey Michael Selman, )
4 et al., )
Plaintiffs, )
5 )
-vs- ) Civil Action
6 ) No. 1:02-CV-2325-CC
Cobb County Board of ) Volume II
7 Education, et al., ) Pages 233-410
Defendants. )
8
9
10
11 Transcript of the Bench Trial Proceedings
Before the Honorable Clarence Cooper
12 November 9, 2004
Atlanta, Georgia
13
14
15
16 APPEARANCES:
17 On behalf of the Plaintiffs: Michael Eric Manely, Esq.
Gerald Weber, Esq.
18 Margaret Fletcher Garrett, Esq.
19 On behalf of the Defendants: Ernest Linwood Gunn, IV, Esq.
Carol Callaway, Esq.
20
21
22
23
Amanda Lohnaas, RMR, CRR
24 Official Court Reporter
United States District Court
25 Atlanta, Georgia
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234
1 (Tuesday, November 9, 2004, 9:30 a.m.; Atlanta,
2 Georgia.)
3 THE COURT: Thank you, good morning, please be
4 seated.
5 We are now ready to resume. I want the plaintiff to
6 call their next witness.
7 MR. MANELY: Thank you, Your Honor. We'd like to
8 call -- I'm sorry.
9 MR. WEBER: Your Honor, we have a couple of
10 stipulations that we think may expedite the trial.
11 THE COURT: Okay, thank you.
12 MR. WEBER: The first of these stipulations is that
13 letters, e-mails, and other documents were received by the
14 Clayton County School District concerning the controversy that
15 led to the evolution sticker and that they were reviewed by
16 some, but not all, school board members.
17 THE COURT: Thank you.
18 MR. WEBER: And a stipulation that a mutually agreed
19 upon sample of such documents will be presented jointly to the
20 Court by, with the Court's permission, Friday.
21 THE COURT: Okay, thank you.
22 MR. WEBER: And the final stipulation is that, if
23 necessary, Betty Gray, a school board member, may be called out
24 of time so that she can attend a school board meeting tomorrow.
25 THE COURT: Thank you.
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1 Call your next live witness, please.
2 MR. MANELY: Yes, sir. We'd like to call Joe Redden,
3 we'd like to call for purposes of cross.
4 THE COURT: Thank you.
5 Please come forward. Please step up, face me, and
6 raise your right hand.
7 JOSEPH REDDEN,
8 having been first duly sworn, was examined and testified as
9 follows:
10 THE COURT: Thank you, please be seated. Make
11 yourself comfortable.
12 THE WITNESS: Thank you, Your Honor.
13 THE COURT: I want you to speak into the microphone
14 as you're testifying and please talk loud enough so that we all
15 can hear your testimony.
16 CROSS-EXAMINATION
17 BY MR. MANELY:
18 Q. Would you please state your name for the record?
19 A. Yes. My name is Joseph Redden.
20 Q. I understand that you are the Cobb County school board
21 supervisor; is that right? Superintendent, excuse me.
22 A. I'm the superintendent of the Cobb County public schools.
23 Q. Could you draw a distinction for me between the school
24 board and what you do?
25 A. Yes. I'm appointed by the school board and the de facto
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236
1 chief executive officer of the school system. So I'm
2 responsible for the administration of the school district and
3 of the maintenance of the schools in Cobb County.
4 Q. But in your capacity you do not actually serve on the
5 school board; is that right?
6 A. I serve as the executive secretary to the school board,
7 but I am not a voting member of the school board.
8 Q. I understand that you became the school board
9 superintendent in November of 2000?
10 A. That's correct.
11 Q. And, of course, we're here today talking about the
12 controversy pertaining to the new texts that you all adopted.
13 I understand that evolution was not on your horizon back when
14 you came on board?
15 A. Not in 2000, that's correct.
16 Q. And that the issue didn't first come up until it was time
17 to review science texts and make a new adoption; is that right?
18 A. That's correct.
19 Q. Now, am I correct that in the course of evaluating texts
20 to propose to the school board, administration put together a
21 committee?
22 A. That is correct.
23 Q. And that committee's job was to look at all the possible
24 science texts that they could, pick out the best ones, and
25 propose them to someone in administration, who then proposed
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1 them to the board?
2 A. More specifically, the state of Georgia adopts school
3 books on a regular schedule and that's prescribed by the State
4 Department of Education.
5 When those adoptions come due, then an effort is made
6 on the part of the state to provide a catalogue or a family, if
7 you will, of appropriate texts which deal with the curriculum
8 in the state of Georgia, and schools make their selections from
9 that state-recommended group of books.
10 And yes, we formed a committee that then reviewed
11 those texts that came from that recommendation to make a
12 determination about what would best suit the needs of our
13 students.
14 Q. So if I understand correctly, there is a universe of
15 potential textbooks, the state of Georgia narrows that down to
16 a finite number of textbooks, and then your committee narrowed
17 that down to an even smaller group that it proposed to someone
18 in administration?
19 A. Correct.
20 Q. And did your committee pick out a certain number of
21 textbooks that they recommended to somebody in administration?
22 A. That is correct.
23 Q. And did administration then recommend those same textbooks
24 to the school board?
25 A. They did.
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1 Q. And do I understand correctly that when the committee
2 picked out the certain set of textbooks, the textbooks did not
3 include any sticker in the cover?
4 A. That is correct.
5 Q. It didn't include any statement saying that evolution is a
6 theory, not a fact, or any of the language that we see in the
7 Cobb school board sticker; is that right?
8 A. That is correct.
9 Q. And do I understand correctly that when administration
10 took the committee's recommendation and proposed these
11 textbooks to the school board, the text still did not include
12 any language like that we see in the sticker that the Cobb
13 school board adopted?
14 A. That is correct.
15 Q. I understand that the committee presented their
16 recommendations in terms of a balanced view of the science
17 curriculum; is that correct?
18 A. They did.
19 Q. I understand that once the texts were proposed they were
20 released for public inspection so that shareholders could come
21 in and take a look at the texts and issue their thoughts about
22 them?
23 A. They were.
24 Q. I understand that you got a number of concerns from folks
25 in the community?
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1 A. There were concerns raised by members of the community,
2 that is correct.
3 Q. I understand that parents raised concerns about the
4 discussions on evolution and exclusion of an in-depth
5 discussion of alternate theories to the theory of evolution?
6 A. Some parents did so, that is correct.
7 Q. I understand that there were parents rejecting the
8 proposed text because they did not fully treat creationism in
9 the books; is that right?
10 A. That is correct.
11 Q. And I believe you recall Marjorie Rogers, specifically,
12 presenting a petition to the board; is that true?
13 A. I do.
14 Q. And there were a number of other petitions presented, I
15 think, a number of them in favor of creationism, intelligent
16 design, alternate views of evolution, correct?
17 A. That is correct.
18 Q. And also a number of them from colleges that were saying,
19 you know, leave evolution instruction alone, it's fine as it
20 is; is that fair to say?
21 A. That is correct.
22 Q. I understand that the board and some members of
23 administration received handouts and videos and books from the
24 intelligent design movement as well?
25 A. That is correct.
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1 Q. Do you recall that citizens specifically approached
2 Mr. Tippins about their concerns?
3 A. Mr. Tippins did state that constituents had approached him
4 about their concerns. I was not aware of them doing so with
5 personal knowledge of that approach.
6 Q. I understand. Did Mr. Tippins express, then, the concerns
7 of his constituents?
8 A. He did.
9 Q. And I understand that administration's thoughts on this
10 was to send a set of books home with Mr. Tippins, suggesting
11 that he review them?
12 A. That is correct.
13 Q. I understand that Mr. Tippins then complained about the
14 administration's reasoning for the adoption of those textbooks?
15 A. I'm not sure that that's entirely accurate, and I think
16 two of the elements you missed in that whole dialogue is that
17 the district was very clearly aware of a conflict with the
18 existing policies and regulations that were governing science
19 instruction in Cobb County and as part of that entire adoption
20 process had reviewed those steps that would be necessary and
21 went into this process with a full understanding that we would
22 have to change both the policy and the regulation that
23 surrounded science instruction.
24 So in terms of the concern about the books, I think,
25 really, everyone was accepting of the fact that the text
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1 provided a sound foundation to improve the instruction of
2 science in Cobb County. I don't specifically remember having
3 the dialogue with Mr. Tippins about his personal objection
4 about the book.
5 Q. Do you not recall at this point Mr. Tippins complaining
6 about the administration's reasoning for the adoption of the
7 textbooks?
8 A. I'm not so sure I follow your line about the
9 administration's reasoning for the adoption of the textbooks.
10 The concerns that he expressed were the concerns
11 about a balanced representation of other views of evolution in
12 the classroom. The text itself and the quality of the text was
13 another issue altogether.
14 Q. I'm sorry if I'm asking confusing questions, let me see if
15 I can not ask it in a confusing way.
16 Did Mr. Tippins complain about administration's
17 reasoning for the adoption?
18 A. Specifically for the adoption, no.
19 MR. MANELY: May I see his deposition? If you can
20 just bear with us for just a moment.
21 THE WITNESS: Certainly.
22 THE COURT: We'll just take a brief 15-minute recess
23 to get that document. Are there other documents you may need?
24 MR. MANELY: I asked her to go ahead and pull
25 Mr. Tippins', we understand he's coming next.
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1 THE COURT: Okay, we'll take a 15-minute break.
2 (Recess.)
3 THE COURT: Thank you, please be seated.
4 Counsel, were you able to get the document, the
5 deposition?
6 MR. MANELY: Yes, Your Honor, I believe it has
7 arrived.
8 THE COURT: Okay. You may proceed.
9 Q. (By Mr. Manely) Mr. Redden, just so that we're back on
10 the same page, I think my last question was do you recall that
11 Mr. Tippins complained about the administration's reasoning for
12 the adoption, and your answer was you don't recall?
13 A. I'm not clear on this point about our reasoning for the
14 adoption. The reasoning for the adoption was to provide a
15 sound education in science to all the students in Cobb County.
16 That's why those texts were chosen, because they gave us the
17 best opportunities to do that.
18 Q. Okay. Let me hand you your deposition. Do you remember
19 when you gave your deposition?
20 A. I certainly do.
21 Q. It was way back in -- a little over a year ago, June 24,
22 2003, about a year and a half ago, correct?
23 A. That's correct.
24 Q. Okay. And you were under oath at that time as well; is
25 that right?
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1 A. That's correct.
2 Q. Let me ask you to turn to your deposition, page 20. Are
3 you there yet?
4 A. Yes.
5 Q. Okay. And on line 15 I begin a question: "Tell me about
6 any communication you had with Mr. Tippins about why -- what
7 the public was expressing to him."
8 And your answer was: "He expressed the concerns that
9 some of his constituents had and we sent a set of books home,
10 suggested that he review them, and he complained about our
11 reasoning for the adoption."
12 Did I read that correctly?
13 A. I'm not sure that you did. I'm not sure that you and I
14 stated that correctly. I mean the complaint about the
15 adoption --
16 Q. That's two issues. The first issue is did I read it
17 correctly?
18 A. You read that correctly, yes.
19 Q. Okay, all right. So at the time in June of '03, when I
20 asked you under oath to tell me about the communications for
21 Mr. Tippins, one of the communications was he complained about
22 our reasoning for the adoption; is that correct?
23 A. No. I think that the -- well, the intent was that his
24 constituents were complaining about our reasoning for the
25 adoption.
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1 Q. Okay, that's two questions again. You testified under
2 oath back in June '03 that he complained about our reasoning
3 for the adoption. That was your testimony; is that correct?
4 A. You know, that statement you have in the deposition,
5 obviously from notes that were taken, but I'm not so sure that
6 I remember that as being accurate.
7 Q. Okay, so you think maybe you didn't say that?
8 A. No, that's not the point at all. I think that the context
9 is that he was complaining about the reasoning for the
10 adoption. The complaints that his constituents expressed was
11 that that adoption did not treat all theories evolving or,
12 rather, addressing the origins of mankind.
13 Q. Okay. Did Mr. Tippins express his constituent's concern
14 that creationism was not being treated fully within the text?
15 A. Yes.
16 Q. I understand that the idea of the disclaimer was initially
17 raised by Mr. Tippins?
18 A. I'm not sure of that. It was originally raised by the
19 board. I'm not sure if that originated with him or with other
20 members of the board. It would appear that it did because he
21 was the one that was the spokesperson at the meeting.
22 Q. Let me hand you a deposition and ask you to refer to page
23 22 of your deposition. Tell me when you're there, please.
24 A. Certainly. I am.
25 Q. All right. We were talking about the disclaimer, you see
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1 up on line 1, process by which the disclaimer came up in
2 connection with the textbook adoption process. You say: "The
3 process was raised by members of the board and discussed by
4 members of the board." And I asked you -- you see on line 6
5 there?
6 A. Yes.
7 Q. I asked you: "What members of the board raised it?"
8 And your answer on line 8 is: "It was initially
9 raised by Mr. Tippins." Do you see that?
10 A. That is correct.
11 Q. Okay. So the disclaimer was initially raised by
12 Mr. Tippins; is that correct?
13 A. Yes. But my point would be that it was raised in public
14 with us, initially by Mr. Tippins. I don't know what
15 discussions took place among the board members prior to that
16 meeting.
17 Q. Okay. Do I understand you correctly that you're saying
18 that the board was having a meeting outside of your presence,
19 perhaps?
20 A. I don't know that they've had a meeting outside our
21 presence or if they had discussions outside our presence.
22 There could have been individual members of the board that had
23 discussions external to a meeting. We're not privy to those
24 conversations.
25 Q. So what you're saying here is the first time that you
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1 heard about it in a public meeting it was raised by
2 Mr. Tippins?
3 A. That is correct.
4 Q. Okay. The condition for adoption of the text was the
5 imposition of the disclaimer in the text; is that correct?
6 A. No. A vote, if I am not mistaken, was a separate issue.
7 I mean, the text was adopted and it was made by movement of the
8 board to include the disclaimer.
9 Q. Let me ask you to turn to your deposition, page 21.
10 A. Yes.
11 Q. I asked you on line 14: "Do you recall how Mr. Tippins
12 voted on the adoption of those particular texts?"
13 A. Yes.
14 Q. And your answer was: "Actually, during that entire
15 adoption, the issue of the disclaimer in the books came up
16 during that process."
17 A. Yes.
18 Q. "That was the condition that was placed in the adoption,
19 that a disclaimer would be placed in specific textbooks, the
20 three textbooks in question."
21 A. That was correct.
22 Q. Okay. So the disclaimer, the adoption of the text was
23 conditioned upon the disclaimer; is that right?
24 A. Well --
25 THE COURT: Excuse me one minute.
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1 (Pause.)
2 THE COURT: Thank you, go ahead. Ask that question
3 again, Mr. Manely.
4 Q. (By Mr. Manely) So the adoption of the textbooks was
5 conditioned upon placing the disclaimer in them?
6 A. In that process, that's correct. The textbooks were
7 brought forward for adoption. In the discussion of any issue
8 the board members have the opportunity to raise, within the
9 context of the board process, a condition to modify that
10 process, and that's the process that took place at that time.
11 Q. So if I'm understanding correctly, the agreement with the
12 board was we'll adopt these textbooks if the disclaimer is also
13 placed in the textbooks; is that fair to say?
14 A. No. I don't think that is fair to say.
15 Q. Let me ask you to turn to your deposition, page 25.
16 A. Let me clarify what I just said. The process --
17 Q. You were under oath at that time?
18 A. Yes.
19 Q. Let me ask you to turn to your deposition, page 75.
20 MR. GUNN: Your Honor --
21 THE COURT: He has a right to clarify any answer he
22 may have given, so let him.
23 THE WITNESS: The board has many issues brought
24 forward. The board also has the opportunity during that
25 process to amend any recommendation that the administration
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1 brings at that time. That is simply the process that they went
2 through with the textbook adoption. The textbooks were brought
3 forward for adoption. That was approved by the board, or at
4 least seconded by the board. During that time you can now
5 discuss the issue.
6 During the discussion of the issue, at that point the
7 issue was raised about putting a disclaimer in the textbooks.
8 That discussion ensued with the board. The board agreed to
9 amend the recommendation to include the disclaimer.
10 I think we're talking past each other but we're
11 saying the same thing. It was then voted to adopt the
12 textbooks with the disclaimer.
13 Q. (By Mr. Manely) All right. I asked you before your
14 explanation, the agreement was we'll adopt these textbooks if
15 the disclaimer is also placed in the textbooks. Is that fair
16 to say? And your answer on this stand today --
17 A. Yes.
18 Q. -- to this Court was no?
19 A. No, I think that is probably fair to say.
20 Q. It is fair to say, isn't it?
21 A. It is. I mean, that's the process they went through.
22 Q. In fact, it's exactly how you testified under oath --
23 A. That is correct.
24 Q. -- in your deposition June 23? Okay.
25 Now, this disclaimer that the Cobb school board put
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1 in the textbooks was not approved by the National Science
2 Foundation, was it?
3 A. No, it was not.
4 Q. I believe at one point you were under the impression that
5 the texts which got the disclaimer put in them, or three texts,
6 is it not more accurate to say that it's one, two, three, four,
7 five, six, seven, eight, nine, ten, eleven, twelve -- thirteen
8 texts?
9 A. (Witness nods head.)
10 Q. Yes?
11 A. Correct.
12 Q. And once it was agreed upon that the disclaimer would be
13 placed in those 13 texts, the board adopted the texts?
14 A. Correct.
15 Q. Let me hand you what's been marked Plaintiffs' Exhibit 1
16 and ask if you can identify this document as the language in
17 the disclaimer?
18 MR. MANELY: Make I use your blowup?
19 MR. GUNN: Sure.
20 Q. (By Mr. Manely) I don't intend for it to be a memory
21 test. If it will help, this is a blowup that your attorneys
22 have put together.
23 A. Thank you.
24 Q. You're welcome. You can compare it against that.
25 A. Yes.
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1 Q. The language of this disclaimer was then produced into a
2 stamp? I don't know if "stamp" is the right word.
3 A. Correct.
4 Q. It's seals that you can affix on things?
5 A. Yes.
6 Q. By administration personnel; is that right?
7 A. Yes, that's correct.
8 Q. And then you all sent out a memo to the different schools
9 saying, schools, you need to get this put in the book; is that
10 right?
11 A. Correct.
12 Q. And so far as you know, all the schools complied and they
13 got it in all the texts?
14 A. As far as I know, that's correct.
15 Q. So the school personnel took care of that, it wasn't like
16 you went out personally or anything?
17 A. That's correct.
18 Q. And as I understand, that disclaimer is now on the inside,
19 like this one, on the inside front jacket of every Cobb County
20 textbook that has anything to do with evolution instruction,
21 right?
22 A. Well, I can't say with certainty that it was put inside
23 every book, again, but that was the intent.
24 Q. That was the intent?
25 A. That's correct.
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1 Q. Do I understand correctly that you would stand by the
2 texts your committee and the administration recommended to be
3 adopted and the material contained within that adoption as
4 being a balanced and relevant approach to science?
5 A. That is correct.
6 Q. After the school board adopted the disclaimer and passed
7 the policy, you guys received a lot of public input from the
8 public who had a perception that the school board is teaching
9 creationism or intelligent design, didn't you?
10 A. The concern was raised by some of our constituents that
11 that was in fact the case, yes.
12 Q. For some it wasn't a concern, for some it was
13 congratulations, you're doing a great thing, you're going to
14 expose our children to intelligent design and creationism? I
15 mean, some were opposed, but some were in favor, correct?
16 A. I think it would be very hard to read the policy and
17 construe that that was in fact the case.
18 Q. That's not what I mean to be asking.
19 A. I understand. But I mean, in terms of if your question is
20 were there mixed views on either side of this issue as a result
21 of that action, yes.
22 Q. And the mixed views were on what it was that the Cobb
23 County school board was actually doing, right?
24 A. Yes.
25 Q. Now, you came in in 2000 and the school district started
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1 evaluating science texts and at some point in 2001 --
2 A. The fall of 2001, that's correct.
3 Q. And by 2002, midway through, a little past, sometime in
4 September, I think, you all had adopted a new policy on
5 evolution instruction; is that right?
6 A. That is correct.
7 Q. Do you recall the policy that your new policy replaced?
8 A. Yes, I do.
9 Q. Rather than ask you to talk about it from memory, let me
10 hand you Defendants' 1. The new policy replaced the prior
11 policy, and the prior policy stated that: "Scientific accounts
12 of the origin of the human species is inconsistent with the
13 family teachings of a significant number of Cobb County
14 citizens." Is that a fair statement so far?
15 A. That is correct.
16 Q. "Therefore, the instructional program and curriculum of
17 the school system shall be planned and organized with respect
18 for these family teachings." Is that correct?
19 A. That is correct.
20 Q. Okay. And you all came up with certainly a dramatic
21 improvement over the prior policy?
22 A. I would hope so.
23 Q. Okay. I understand that the administration was not
24 entirely happy with the language of this disclaimer, that you
25 all came up with your own language; is that right?
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1 A. As part of the discussion we made a recommendation to the
2 board on the language, that is correct.
3 Q. Let me retrieve the other one from you. I'm handing you
4 what has been marked as Plaintiffs' Exhibit 2. Is that the
5 other language that you recommended to the board?
6 A. It is.
7 Q. But the board, I understand -- and, in fact, data sources,
8 you're listed as one of the data sources there, I see?
9 A. Yes, that is correct.
10 Q. But I understand that the board rejected this other
11 language; is that correct?
12 A. Yes. Rejected is rather harsh.
13 Q. Let me ask you to turn to the second page of Plaintiffs'
14 Exhibit 2. Do you see where it says Board Agenda Item?
15 A. Yes.
16 Q. See where it says Statement for Science Textbooks?
17 A. Yes.
18 Q. Do you see where it says: "The statement in the attached
19 file was rejected by the board of education"?
20 A. Yes.
21 Q. Rejected is rather harsh, isn't it?
22 A. Well, one man's happy is another man's glad is all I can
23 say.
24 Q. The administration's recommendation, as exemplified by
25 Plaintiffs' Exhibit 2, was simply to modify the statement to a
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1 more balanced view than that in the disclaimer; is that
2 correct?
3 A. That is correct.
4 Q. Am I correct, sir, that it's the state of Georgia that
5 decides the curriculum for the Cobb County classroom?
6 A. That is correct.
7 Q. And that the school board has the role of oversight to see
8 how the curriculum gets done?
9 A. That is correct.
10 MR. MANELY: Thank you, sir, no further questions.
11 THE COURT: Thank you.
12 THE WITNESS: Thank you.
13 THE COURT: Mr. Gunn?
14 DIRECT EXAMINATION
15 BY MR. GUNN:
16 Q. Superintendent Redden, could you tell the Court a little
17 bit about your background?
18 A. Yes. I was a graduate of the United States Air Force
19 Academy and was commissioned on active duty in 1964 and served
20 on active duty for 35 years.
21 Upon my retirement from the Air Force, I was
22 approached to become involved in education and involved on a
23 search on my own part and with a professional search firm that
24 saw me come to Cobb County as a candidate for the school
25 superintendency. I was selected to be a superintendent and
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1 attained that position on November 27th of 2000.
2 Q. Mr. Manely has asked you a little bit about this whole
3 process that had some, I guess some questions about the way you
4 responded to particular --
5 A. Certainly.
6 Q. -- phrasings of questions. The text adoption process, do
7 you remember when the process began for this particular text
8 adoption?
9 A. Yes.
10 Q. When was that?
11 A. It began the fall of 2001.
12 Q. And there's some committee that's put together to make
13 recommendations?
14 A. That is correct.
15 Q. And is it true that the superintendent actually makes
16 those recommendations on behalf of the committee to the board
17 of education?
18 A. That is correct.
19 Q. In that process were there concerns raised by the group
20 that was specifically looking at the biology textbooks about a
21 previous policy and regulation?
22 A. That is correct, there were.
23 Q. I show you what's been marked Plaintiffs' Exhibit 3 and
24 ask if you can identify that?
25 A. Certainly.
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1 Q. What is that?
2 A. This was provided by our school improvement division and
3 had some questions that were raised by the staff with regard to
4 the science adoption for the textbooks.
5 Those questions specifically pertained to the
6 existing policy and regulation that the school district had in
7 effect with regard to science instruction.
8 Q. Okay. And is it fair to say that the issues dealt with
9 the fact that a textbook adoption might conflict with our
10 previous policy and regulation, which said that biology
11 instruction should respect family teachings?
12 A. That is correct.
13 Q. And, in fact, the third page of that document references
14 the idea that if there is instructional material which is
15 offensive, it asks if it should be removed or how it should be
16 addressed?
17 A. That is correct.
18 Q. And did the science adoption committee specifically even
19 quote the provisions of the existing policy and regulation that
20 were a problem?
21 A. They did.
22 Q. Okay. What was the problem with the policy IDBD that was
23 referenced on page 4, as you see it?
24 A. The board policy addresses the origin of human species.
25 Parents' concern reflect a much broader view of evolution.
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1 Parent concerns include the origin of the Earth, specifically
2 the Big Bang theory, dinosaurs, age of Earth, and animal
3 adoption. Should the board policy in relation be revised to
4 address these concerns.
5 Q. And on page 4 of that exhibit it quotes the language of
6 the policy, I was asking what's in the policy that you think
7 was problematic?
8 A. Well, one, that the instructional program and curriculum
9 of the school system is replanned and organized with respect
10 for these family teachings. And then the curriculum of Cobb
11 County school district shall be organized so as to avoid the
12 compelling of any student to study the subjects of the origin
13 of human species.
14 Q. Okay. Let me ask you specifically with regard to the
15 regulation, it expresses that the origin of human species shall
16 be excluded as a topic of curriculum for elementary and middle
17 schools of Cobb County School District. Is that true now?
18 A. That is not correct. That is not true now.
19 Q. Number 3 says: "No course of study dealing with theories
20 of origin of human species shall be required of students for
21 high school graduation." Is that true now?
22 A. It is not.
23 Q. Number 4 says: "Elective opportunities for students to
24 investigate theories of origin should be available through
25 classroom studies." Is that true now?
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1 A. It is not.
2 Q. 5 says: "High school courses offered on an elective
3 basis, which includes studies on origin of human species, shall
4 be noted in curriculum -- shall be so noted in curriculum
5 catalogues and listings." Is that true now?
6 A. No, it is not.
7 Q. Given that you're not a scientist, but a school
8 administrator, do you view the changes that have taken place as
9 an improvement of the curriculum and teaching evolution in
10 particular?
11 A. I do.
12 Q. Why?
13 A. We found ourselves in a circumstance, as we have
14 throughout the state, in having curriculum that is not aligned
15 with what students would be evaluated on. And a sound basis
16 and scientific theory and fact is important for young people to
17 be able to, one, not only successfully attain good education
18 here in Georgia, but move on to a future and be able to do well
19 on standardized tests that qualify them for admission into
20 institutions of higher learning.
21 I believe that this ends up being a science
22 foundation that is well-founded, reviewed by the National
23 Science Foundation, and so it's a science adoption that is
24 well-found and well-based and gives us an opportunity to
25 provide a better, more comprehensive presentation of science
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1 across all of our grade levels.
2 Q. What action did the administration take in light of that
3 document and the committee's concerns?
4 A. We started the work on the policy and also the review of
5 what we need to do to adopt a regulation that would be more
6 balanced in support of a textbook adoption that we would,
7 hopefully, take.
8 Q. And the administration's viewpoint was the text was, this
9 biology text in particular, was acceptable and satisfactory by
10 itself, right?
11 A. Yes, it was.
12 Q. And the bulk of the parent concerns that you addressed
13 with Mr. Manely, those were directed largely at the board
14 members from their constituents, weren't they?
15 A. That is correct.
16 Q. There were -- and I wanted to make clear some of your
17 testimony earlier -- there were parent concerns about the texts
18 themselves, correct?
19 A. That is correct.
20 Q. Okay. What were the parent concerns? Were they all that
21 the texts didn't include creationism?
22 A. No. I mean, we had a wide range of parent concerns
23 raised. We ended up putting the textbooks on display. There
24 are numerous sites they can look at them, one of them is
25 central administration. Parents can make observations about
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1 the completeness of the text.
2 We had some inputs made from some of our parents
3 whose profession is the teaching of science that were critical
4 of the texts in other ways, in addition to those that might
5 have had concerns about the issue of evolution itself.
6 Q. Okay. Are you aware whether any of those communications
7 related to a scientific dispute about parts of evolution
8 theory?
9 A. No, I am not.
10 Q. Okay. Did any of the parents propose particular solutions
11 in the form of adding to the texts?
12 A. They didn't do so directly to us. They may have and I'm
13 not aware of someone doing that.
14 Q. Not to the administration?
15 A. Not to the administration.
16 Q. Okay. The parent concerns that were raised was directly
17 just before the decision to adopt the sticker, right?
18 A. Probably, yes.
19 Q. Now, the sticker language that you were shown, that
20 doesn't exist anywhere independently of the text that it's
21 attached to, does it?
22 A. No.
23 Q. Let me ask you, did you have an opportunity to review the
24 text?
25 A. At the time of the adoption I did.
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1 Q. I'm going to show you a depiction of the portions of the
2 text that relate strictly to evolution in Unit 15, and this is
3 101 pages of text.
4 Given that the administration didn't agree with the
5 decision to add a sticker to the text, do you think that the
6 message of evolutionary curriculum predominates in this
7 communication; or, in your view, does the language of this
8 sticker -- you probably can't see it -- but what message do you
9 think the Cobb County School District was sending or the board
10 was sending by adding this language to this text?
11 THE COURT: When you say "this language," the
12 language in the sticker?
13 MR. GUNN: Yes, Your Honor.
14 THE COURT: I just want to make sure for the record,
15 okay.
16 THE WITNESS: I think they were trying to clearly
17 emphasize that in all of our educational processes, we ought to
18 be involved with critical thinking and we ought to be open to a
19 wide range of ideas and we ought to be respectful of those
20 ideas. I mean, that's an assumption on the surface. I can't
21 really determine what the intent might have been of individual
22 board members.
23 Q. (By Mr. Gunn) When you look at that, does that tell you
24 that the thing communicated is predominantly something
25 religious or something that relates to science curriculum?
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1 A. I think it clearly indicates more to the impact on science
2 curriculum and the approach we ought to take to the issues at
3 hand.
4 Q. Although, as you testified, there were a lot of members of
5 the community that wanted, expressed ideas about teaching
6 creationism and teaching other things that might not have been
7 appropriate, in fact, what the board did was adopt a policy and
8 a regulation that corrected the problems that the
9 administration saw with --
10 MR. MANELY: Objection, leading.
11 THE COURT: Try not to lead him.
12 MR. GUNN: Excuse me, Your Honor.
13 THE COURT: Yes, try not to lead.
14 THE WITNESS: Well, more specifically, to answer,
15 that whole process, it is the process that administration
16 drafts proposed policies and presents them to the board.
17 That proposed policy was drafted by administration in
18 response to and in consultation with staff in terms of the
19 concerns we had about the appropriateness of the adoption and
20 support for that adoption.
21 The regulation was drafted, again by staff,
22 recommended to the board for their review and approval. That
23 was done so with consultation with legal staff and also with
24 the scientific educational leaders within our own community in
25 Cobb County, with some consultation from those at the
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1 university level that also made input to that process for us.
2 Q. (By Mr. Gunn) Do you remember Mr. Selman attending board
3 meetings and speaking at board meetings on these topics?
4 A. Yes, I do.
5 Q. Do you remember, either at the board meetings or in the
6 media, the opinion being expressed by Mr. Selman that he was
7 going to wait and see how the policy looked before he decided
8 whether to expand this lawsuit?
9 A. Yes.
10 Q. I'm going to show you what's been marked as Defendants'
11 Exhibit 5. Can you identify that?
12 A. Yes.
13 Q. What is that?
14 A. This is the current policy --
15 Q. Okay.
16 A. -- adopted 9-26-02.
17 Q. What does it say about teaching creationism?
18 A. "This policy is not to be interpreted to restrict the
19 teaching of evolution, to promote or require the teaching of
20 creationism, or to discriminate for or against a particular set
21 of religious beliefs, religion in general, or nonreligion."
22 Q. And the process for adopting a policy, the board has the
23 option of revising it, sending it back, or adopting it as is?
24 A. That's correct.
25 Q. What was the vote on that policy, do you know?
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1 A. The vote on this policy I believe was seven-oh.
2 Q. Show you now what's been marked Defendants' Exhibit 6 and
3 ask if you can identify that?
4 A. Yes. This is the current regulation. It was adopted on
5 January 8 of '03.
6 Q. What does the third paragraph of the regulation express
7 about teaching religion?
8 A. "Under no circumstances should teachers use instruction in
9 an effort to coerce students to adopt a particular religious
10 belief or set of beliefs, or to disavow a particular religious
11 belief or set of beliefs. Instruction should be respectful of
12 personal religious beliefs and encourage such respect among
13 students. Teachers should not interject their personal
14 faith-based beliefs, or lack thereof, into such instruction,
15 and should maintain a posture of neutrality toward religion."
16 Q. It may be obvious but I'd like to at least get your
17 general observation on, board members don't teach classes, how
18 do they direct what happens in the classroom?
19 A. Generally the input through the board, in terms of our
20 execution of our daily activities, are through policies and
21 through our regulations.
22 Q. Okay. How can they change what happens as far as the
23 curriculum that's taught?
24 A. That really is changed through the curriculum adoption
25 process, but really there is very little impact they can have
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1 on the -- impact in terms of the direct instruction of the
2 curriculum. That's dictated by the state of Georgia and if
3 we're going to satisfy state law and maintain our status and
4 receive state funding, then we have to comply with the
5 instructions from the state with regard to curriculum.
6 Q. Other than the curriculum adoption process that we've been
7 talking about?
8 A. That's correct.
9 Q. This sticker was adopted in 2002. How many students are
10 there in Cobb County today?
11 A. 103,500.
12 Q. How many complaints has your office received that religion
13 was being taught in science class?
14 A. We have received no complaints of that nature.
15 Q. How many complaints have you received that teachers were
16 teaching intelligent design in science class?
17 A. We've received no complaints of that nature, to my
18 knowledge.
19 Q. How many complaints have you received that teachers were
20 teaching creationism in science class?
21 A. We've received no complaints of that nature, either, to my
22 knowledge.
23 Q. Thank you.
24 THE COURT: Mr. Manely?
25 MR. MANELY: Yes, Your Honor, thank you. We'd like
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1 to tender Plaintiffs' 1.
2 MR. GUNN: The objection I would make is that
3 Plaintiffs' 1 doesn't exist other than as an attachment to a
4 textbook, which is already in evidence.
5 THE COURT: Approach the bench one moment with that
6 document, please.
7 (Following proceedings at bench.)
8 THE COURT: You object to the language of the sticker
9 being tendered into evidence?
10 MR. GUNN: I guess I object to it being tendered as
11 an exhibit other than in the book, which is the only way it
12 exists. As Superintendent Redden testified, it only exists as
13 affixed to the book.
14 THE COURT: Objection overruled.
15 MR. GUNN: Okay.
16 THE COURT: Admitted.
17 (Following proceedings in open court.)
18 MR. MANELY: Your Honor, there's a question about
19 Defendants' 3 that opposing counsel and I need to work out and,
20 if it's okay, we can raise the issue on its admissibility later
21 on when we have a break.
22 THE COURT: Sure.
23 MR. MANELY: It won't influence the examination.
24 RECROSS-EXAMINATION
25 BY MR. MANELY:
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1 Q. If you would take a look at Defendants' 3 for me.
2 A. Certainly.
3 Q. Just very briefly, back on page 5, did I hear correctly
4 that the students no longer have any elective opportunities for
5 students to investigate theories of origin of human species?
6 A. That's not correct. I mean, we have options for
7 comparative religion classes and things of that nature.
8 Q. I just want to make sure of that.
9 A. That is correct.
10 MR. MANELY: That's all I have.
11 THE COURT: Anything further?
12 MR. GUNN: I would move to admit Defendants' Exhibit
13 3.
14 MR. MANELY: Your Honor, my concern about Defendants'
15 Exhibit 3 is it's fine up until we get to -- do you need a copy
16 of it?
17 THE COURT: Sure.
18 MR. MANELY: Can we approach?
19 THE COURT: Sure. Thank you.
20 MR. MANELY: It's fine up through the end of the
21 official document of the Cobb School District, which ends at
22 page 8. After that we seem to be getting into the kinds of
23 material that the parties have entered into a stipulation
24 about, pros and cons, reviews of the text. And we will be
25 tendering a fair sample that the two parties agree to to the
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1 Court by Friday.
2 It seems to give undue weight to these three
3 documents, which have nothing to do with anything produced by
4 the county, to tender it along with this particular document
5 produced by the county.
6 MR. GUNN: Your Honor, as a factual matter, if you
7 look at page 3 of the exhibit, the last sentence on that page
8 3, it says "Copies of parent comments are also attached." This
9 is the --
10 THE COURT: Page 3?
11 MR. GUNN: Page 3 of the exhibit. There's some small
12 text below the other text that says, at the very last line,
13 "Copies of parent comments are also attached."
14 THE COURT: Yes, I see that.
15 MR. GUNN: These are the parent comments and gets to
16 the previous condition of the school district before we acted
17 to create a stronger evolution curriculum.
18 You can see that the second letter referenced is
19 dated March 18, 1996. That was the previous textbook adoption.
20 The copyright on the final page -- well, the date at the top is
21 March of '96. This is what was the previous condition before
22 we addressed these concerns.
23 MR. MANELY: Your Honor, with Mr. Gunn calling that
24 sentence to my attention and the fact that these letters are
25 dated back in 1996, we'll withdraw our objection.
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1 THE COURT: Let the record reflect the objection has
2 been withdrawn and the exhibit is admitted without objection.
3 MR. GUNN: No other questions of the witness.
4 THE COURT: You may step down. Thank you very much.
5 Call your next witness.
6 MR. GUNN: May he be excused, Your Honor?
7 THE COURT: Sure.
8 MR. MANELY: Your Honor, we'd like to call Lindsey
9 Tippins.
10 MR. WEBER: Your Honor, the court reporter asked that
11 I correct the stipulation. Apparently I said "Clayton" and I
12 meant the word "Cobb."
13 THE COURT: Let the record so reflect.
14 MR. WEBER: Thank you, Your Honor.
15 THE COURT: I did note it myself. Please step up,
16 face me, and raise your right hand.
17 LINDSEY TIPPINS,
18 having been first duly sworn, was examined and testified as
19 follows:
20 THE COURT: Thank you. Please be seated, make
21 yourself comfortable. Please speak into the microphone as you
22 testify, and talk loud enough so that we all can hear your
23 testimony.
24 Your witness, Counselor.
25 MR. MANELY: Thank you, sir.
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1 CROSS-EXAMINATION
2 BY MR. MANELY:
3 Q. Would you please state your name for the record?
4 A. Lindsey Tippins.
5 Q. And, Mr. Tippins, you're on the school board?
6 A. That's correct.
7 Q. When did you first run for the school board and get
8 elected?
9 A. The election was in 1996. I took office January 1 of '97.
10 Q. What do you do for a living?
11 A. I'm a utility contractor, better known as a ditch digger.
12 Q. I understand that you ran for the school board because you
13 feel you bring a bona fide business experience, is that right,
14 to the school board?
15 A. Yes, sir. I guess sometimes that's questionable but
16 that's the reason I ran.
17 Q. Are you now in your third term, you're about to start your
18 third term, maybe?
19 A. Start the third term January 1.
20 Q. So the good people of Cobb County just reelected you?
21 A. That's correct.
22 Q. I also understand that you are the current chair of the
23 Cobb school board; is that right?
24 A. That's correct.
25 Q. I understand that 2002 was the science textbook adoption
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1 year; is that correct?
2 A. That's correct.
3 Q. And that the texts get reviewed on a seven-year cycle?
4 A. That's what we have done historically, yes, sir.
5 Q. I understand that in the process of adopting the texts
6 there was a committee formed that reviewed the texts available
7 and recommended certain texts to the board; is that correct?
8 A. That's correct. Committee was formed by administration.
9 It was not a board committee; it was an administration
10 committee.
11 THE COURT: Can you speak a little louder, sir?
12 THE WITNESS: Yes, sir.
13 THE COURT: Thank you.
14 Q. (By Mr. Manely) I understand that you raised concerns
15 with the administration that some of the texts that dealt with
16 the theory of origin were teaching only from a single point of
17 view?
18 A. That's correct.
19 Q. You raised concerns with the board that the theories of
20 origin was taught from just a single viewpoint of evolution; is
21 that right, or, more specifically, macroevolution?
22 A. That's correct.
23 Q. I understand that you brought up the idea of intelligent
24 design to the board when discussing whether or not to adopt the
25 textbooks?
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1 A. When the issue first came up in the work session, that was
2 raised as a point to ask our attorneys what was involved in
3 that and also to look at it and see if there was any merit in
4 those areas.
5 Q. You all talked about it amongst yourselves on the school
6 board and after a while decided to ask for a legal opinion on
7 that?
8 A. In the course of the conversation of the work session we
9 discussed the textbook adoption, and that was a work in
10 progress, that was the first time we looked at it, so that was
11 a consideration.
12 Q. I think my question was you were the person who brought up
13 intelligent design to the board when discussing whether to
14 adopt the textbooks; is that right?
15 A. That's correct.
16 Q. I understand you also brought up the term "creation
17 science" to the board during this session; is that right?
18 A. I think so, yes, sir.
19 Q. Do you recall that the board discussed creationism in the
20 context of the textbook adoption?
21 A. In that meeting?
22 Q. Yes, sir.
23 A. I don't believe the board discussed creationism, no, sir.
24 Q. In any subsequent meeting with regard to the textbook
25 adoption, did the board discuss creationism?
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1 A. In the course of the legal review Mr. Brock, I think,
2 informed us that the Supreme Court had held that you could not
3 teach creationism in public education.
4 Q. Okay, so your recollection is that Mr. Brock brought that
5 idea up?
6 A. In part of the review of the entire adoption, yes, sir.
7 MR. MANELY: May I see his deposition?
8 Q. (By Mr. Manely) Let me hand you your deposition, sir. Do
9 you recall when you gave that deposition?
10 A. I beg your pardon?
11 Q. Do you recall when you gave that deposition?
12 A. I do. Not the exact date, but I recall giving it.
13 Q. It was about a year and a half ago; is that right?
14 A. I believe that's right.
15 Q. And you were under oath at the time?
16 A. That's correct.
17 Q. Would you please turn to page 27?
18 A. Sure.
19 Q. Let me know when you're there.
20 A. Okay.
21 Q. Would you please refer to line 8 and let me know if I'm
22 reading this correctly.
23 My question to you was: "Do you recall creationism
24 as a term coming up when y'all were discussing the adoption of
25 the textbooks?"
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1 And your answer there was: "I do."
2 And I asked the next question there on line 12: "Who
3 do you recall brought that issue up?"
4 And your answer to me, under oath, beginning on line
5 14, is: "Well, I know I talked about it. I don't know that I
6 brought it up. I think creationism was spoken of."
7 Is that right?
8 A. That's correct.
9 Q. How about creation science, did you bring that term up?
10 A. I think I used that term.
11 Q. Did you bring it up to the board?
12 A. I think I used the term in the course of the conversation,
13 yes, sir.
14 Q. But do --
15 A. I don't know that I was the first one that brought it up.
16 And, you know, I remember using these terms, I don't know who
17 was the first one that brought it up, but I remember using the
18 terms, yes, sir.
19 Q. Let me ask you to turn to your deposition to page 25. Did
20 you bring up the issue of intelligent design?
21 A. I'm not sure whether I did or not. I think we discussed
22 it in that meeting.
23 Q. Okay. All right, ask you to turn to page 24, line 24,
24 you're saying: "Just pretty much heard it, I certainly don't
25 know what, I don't know the specifics of intelligent design."
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1 I asked you: "Did the subject of intelligent design
2 come up in your all's discussion about whether or not to adopt
3 textbooks -- adopt the textbooks," excuse me.
4 And your answer was: "I think the term was used,
5 yes, sir."
6 Am I reading it correctly so far?
7 A. You did, and your point is? I mean, I don't see anything
8 contradictory in this.
9 Q. Am I reading the deposition correctly so far?
10 A. You are.
11 Q. And the next question was: "Who do you recall bringing
12 that up?"
13 And your answer was: "I think I did."
14 A. Well --
15 Q. That was your answer in the deposition?
16 A. I think that's consistent with what I've said. I know I
17 used the term. I can't speak for someone else, but I think I
18 used the term.
19 Q. And now you recall that you brought it up?
20 A. I don't know that I brought it up. I know I used the term
21 and I recall using it. And if somebody needs to take the rap
22 for bringing it up, I'll take the rap. I don't know that I was
23 the first one.
24 Q. Well, I don't want you to take the rap for bringing it up,
25 but didn't you testify under oath in June 2003 --
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1 THE COURT: Let's not argue. You read what he said.
2 Q. (By Mr. Manely) Now by creationism, when the board was
3 discussing that, you mean the belief that creation was caused
4 by a supreme being; is that right?
5 A. I don't think I said that.
6 Q. Let me ask you to turn to your deposition page 28.
7 A. Okay.
8 Q. Are you there?
9 A. I'm there.
10 Q. All right. Line 12, are you there?
11 A. Okay.
12 Q. Can you read for us what you said under oath that day?
13 A. Well, let me see what the question was.
14 Q. For the question you're going to have to go back to page
15 27, line 17.
16 A. Well, that's where I'm going.
17 Q. If it will help expedite you along there -- you are there,
18 page 27, line 17?
19 A. I'm there.
20 Q. I asked: "Why did you talk about creationism, the best
21 you recall, when you were discussing the adoption of the
22 textbooks?"
23 And your answer was: "As you have correctly stated,
24 I represent a diverse district, and in that diversity there are
25 those who believe in creation, not creationism but creation."
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1 Question: "Creation as taught by the Holy Bible?"
2 You said: "Pardon?"
3 I said: "Creation as taught by the Holy Bible?"
4 Your attorney interjected: "Are you asking him if
5 that's one particular belief that his diverse community has?"
6 And I said: "If that's what you were referring to."
7 And then you said: "That's not what I'm referring to
8 you."
9 So I said: "Well, please tell me what you're
10 referring to."
11 So far so good?
12 A. So far so good.
13 Q. Okay, then page 28, line 12, why don't you read that for
14 us, what you swore under oath in June '03?
15 A. "What I'm referring to is a belief that the origin or the
16 theories of origin had to do with creation by a supreme being,
17 I guess, and that you would acknowledge the existence of a
18 supreme being and that that supreme being had a hand in
19 creation."
20 Q. Okay. Now, you conducted no review of scientific
21 literature prior to discussing the adoption of the textbooks,
22 did you?
23 A. Personally?
24 Q. Yes.
25 A. No.
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1 Q. You conducted no review of the scientific literature
2 before you brought up the ideas of intelligent design or
3 scientific creationism, did you?
4 A. No.
5 Q. Instead, you used common knowledge in bringing up these
6 terms; is that right?
7 A. Pretty much.
8 Q. You believe it is prudent to bring up intelligent design
9 and creationism in the context of science textbook adoption?
10 A. I think it's prudent to bring up any term that would be of
11 a consideration in the adoption of textbooks or any other kind
12 of business that may come before the board.
13 Q. But I want to be precise about this. The terms
14 "creationism" and "intelligent design" in the context of a
15 science textbook adoption, you think it's prudent to bring up
16 those terms and discuss them?
17 A. Yes, sir.
18 Q. During the period of textbook adoption, you only ever
19 spoke with one person proclaiming himself to be a scientist
20 about the scientific disputes pertaining to macroevolution; is
21 that right?
22 A. I believe that's right, yes, sir.
23 Q. And you asked this person about it; is that right?
24 A. That's correct.
25 Q. He's a personal acquaintance of yours; is that right?
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1 A. That's correct.
2 Q. You go to church with him?
3 A. That's correct.
4 Q. And all that he said is that there's a controversy in the
5 scientific community from a proof standpoint; is that right?
6 A. That's correct.
7 Q. All that he said is that macroevolution violates
8 scientific principles; is that right?
9 A. That it does violate scientific principle?
10 Q. Yes.
11 A. I don't recall exactly the details of it, but his answer
12 had to do with scientific evidence behind the theory of
13 creation. So I think that's pretty much what you said, if you
14 paraphrase it. I have to confess, I don't have total recall of
15 every conversation I ever had.
16 Q. He certainly didn't tell you how he contended it violated
17 scientific principles, did you -- did he?
18 A. No, sir.
19 Q. And he's a chemist; is that right?
20 A. I'm not sure what he is.
21 Q. Chemistry professor?
22 A. I'm not sure what he --
23 Q. You don't know, okay. You didn't solicit the opinions of
24 your science teachers or professors in the Cobb County
25 educational system about this, did you?
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1 A. I don't recall whether I talked to any teachers or not, to
2 be honest with you. We did get a great deal of literature that
3 came in on this issue.
4 Q. Perhaps it will help refresh your recollection if you'll
5 turn to page 48 of your deposition.
6 A. What page?
7 Q. 48.
8 (Pause.)
9 Q. (By Mr. Manely) Are you there?
10 A. Yeah.
11 Q. All right. On this page we're talking about your
12 conversation with this fellow that we were just referring to,
13 and on line 18 do you recall I asked you: "Did you go to any
14 of your science teachers or professors within the educational
15 system of Cobb County?"
16 And what was your answer there on line 21?
17 A. "No." And your point being? I think I replied I don't
18 recall.
19 Q. Okay, but at least in June '03, you recalled and the
20 answer was no?
21 A. You asked me did I recall it and I didn't recall it then.
22 I still don't recall it.
23 Q. Okay. My answer -- my question -- you're losing me. Page
24 48, line 18, I don't see the question "recall" anywhere in
25 there. That word is not in there.
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1 "Did you go to any of your science teachers or
2 professors within the educational system in Cobb County?"
3 No equivocation, you told me: "No."
4 A. I didn't recall it then; I don't recall it now.
5 Q. You did not seek out any scientists who practice in the
6 evolution field to support the theory and fact of evolution,
7 did you?
8 A. No, sir.
9 Q. The only other person that you spoke to on this issue at
10 all was a retired medical doctor; is that right?
11 A. That's correct.
12 Q. And you don't know if he has any education in evolution at
13 all?
14 A. Not firsthand, no.
15 Q. Let me ask you to refer to your deposition, page 49, line
16 18. Tell me when you're there, please.
17 A. I'm here.
18 Q. I ask you the question about this retired medical doctor:
19 "What education does he have in macroevolution?"
20 And your answer was not equivocal then, was it? You
21 said: "I don't know that he has any."
22 A. I think that's what I just said.
23 Q. And all that this retired medical doctor whose educational
24 background you don't know said was that it's a controversy?
25 A. That's correct.
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1 Q. But still, evolution is a part of the required curriculum
2 that Georgia insists that you teach; is that correct?
3 A. I believe it's part of the QCCs, yes, sir.
4 Q. So now we're talking about prior to the adoption of the
5 textbook, prior to the imposition of the disclaimer, the board
6 was gathering information; is that right?
7 A. That's correct.
8 Q. Okay. And in the gathering information stage, first you
9 determined if intelligent design and creationism is worthy for
10 inclusion; is that correct?
11 A. I'm not sure that that was the first thing we gathered. I
12 think in the review of the process, I believe we were told that
13 the Supreme Court had held that you could not teach creationism
14 in public schools. And I think there was a case in Kansas that
15 had held against teaching intelligent design.
16 Q. You're kind of stuck there; you can't teach it, right?
17 A. I think that's correct.
18 Q. But my question was in the information-gathering stage,
19 first you determine if intelligent design is worthy for
20 inclusion, correct?
21 A. Not necessarily.
22 Q. All right, would you please turn to page 51 --
23 MR. GUNN: Your Honor?
24 THE COURT: Excuse me.
25 MR. GUNN: I've tried to leave a little leeway to
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1 opposing counsel. He's impeaching him with his deposition but
2 it's not impeachment. He's testifying that he doesn't remember
3 and then he reads a section where he says he doesn't remember.
4 He's now positing that the first thing you do is
5 determine whether it's worthy of creation, and that was exactly
6 consistent with Mr. Tippins' testimony, as he will get to. I
7 object to the improper impeachment.
8 THE COURT: Just to make sure the record is
9 absolutely clear on this issue, ask the question and if the
10 question is contrary to what he stated in his deposition, then
11 we'll do it that way, okay?
12 MR. MANELY: All right.
13 Q. (By Mr. Manely) The question immediately before that set
14 it up was the --
15 THE COURT: Ask him that question again.
16 MR. MANELY: Okay.
17 Q. (By Mr. Manely) In the information-gathering stage, first
18 you determine if intelligent design is worthy for inclusion,
19 correct?
20 A. I didn't say that.
21 Q. Okay.
22 THE COURT: Was his answer different earlier?
23 THE WITNESS: Maybe I need to ask you a question.
24 What do you mean by "worthy of inclusion"?
25 MR. MANELY: Page 52, line 8, Your Honor: "I guess
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1 in the information-gathering stage you need to find out, number
2 one, is it worthy for inclusion." Immediately above that, the
3 "it" that he's referring to above that, page 52, line 7,
4 creation science or intelligent design.
5 THE WITNESS: And if you'll go on past that, you'll
6 also see that I said that number two, is it legal for inclusion
7 and I don't know which one comes first, but you've got a
8 two-prong test that I made very clear to you in the deposition
9 that you have to make a determination is it worthy and is it
10 legal, and either one could preclude it from being in the text.
11 And if it's not legal to be in the text, the other one is a
12 moot point.
13 Q. (By Mr. Manely) Sir, my question was first --
14 THE COURT: Counsel, approach the bench one minute.
15 (Proceedings at bench.)
16 THE COURT: It seems as if you are asking the
17 question and if he doesn't respond the way -- what I want you
18 to do is do ask him the question, let him respond to that
19 question, and if his answer is different I don't mind you
20 impeaching him. It seems as if your questions are asking so
21 and so, is that right? I don't want that. Ask him the
22 question without suggesting an answer and let him answer it.
23 MR. MANELY: My problem with that, suggesting an
24 answer, is that I have him on cross.
25 THE COURT: But that's not proper impeachment. You
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1 can lead on cross.
2 MR. MANELY: That's what I mean.
3 THE COURT: But it seems if you're reading from the
4 thing and then you ask him is that right, he gets confused. I
5 want him to be clear. Ask the leading question, let him
6 answer, and then go to the document if it's different.
7 MR. MANELY: Okay.
8 (Proceedings in open court.)
9 THE COURT: Go ahead, Mr. Manely.
10 MR. MANELY: Thank you, sir.
11 Q. (By Mr. Manely) You were talking about the two-prong
12 test; is that right?
13 A. That's correct.
14 Q. And the two-prong test is worthy of inclusion and legal
15 for inclusion; is that right?
16 A. In my mind, yes, sir.
17 Q. So first you determine if it's worthy; second, you
18 determine if it's legal. Is that right?
19 A. Or vice versa. I don't know that there's a mandate
20 anywhere that you determine one before the other, but it's got
21 to meet both qualifications of the test.
22 And in the review process it became evident that
23 there was precedent in court that you could not put intelligent
24 design in the curriculum, so it's a moot point.
25 Q. All right. So you're telling this Court that you did not
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1 first determine whether or not intelligent design was worthy
2 for inclusion?
3 A. I think it was more of a concurrent fact-finding thing
4 than step one or step two.
5 Q. My question was, sir, are you telling this Court that you
6 did not evaluate whether or not intelligent design was worthy
7 for inclusion?
8 A. Sir, I didn't evaluate whether any point of it was worthy
9 of inclusion because we're not in the business on the Cobb
10 County school board to make scientific determinations. We are
11 a policy-making board and we adopt curriculum but we certainly
12 don't come as expert witnesses or expert opinions as to what
13 should or should not be in a text.
14 Q. Okay, all right. I apologize for the colloquy, I got
15 awfully confused. I understand that there are two prongs:
16 worthy and legal. Is that right?
17 A. Uh-huh.
18 Q. And if it's worthy, certainly you want to find out if it's
19 legal; is that right?
20 A. I'd say so. But if I find out first that it's not legal,
21 the question of being worthy is a moot point.
22 Q. So you do recall that you asked your attorney to determine
23 whether or not it was legal?
24 A. I don't know that we asked him specifically, but in the
25 entire review that counsel came out.
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1 Q. You don't remember if you asked him specifically?
2 A. I think we asked him about the legality of it because it
3 obviously has been a situation where in the courts of America
4 this issue has been battered back and forth in science textbook
5 adoptions.
6 Q. All right, so the board decided to adopt the text as
7 written, but also to encourage a full range of discussion of
8 scientific issues and scientific information; is that correct?
9 A. Repeat that question, please, sir.
10 Q. So the board decided to adopt the text as written, but
11 also to encourage a full range of discussions of scientific
12 issues and scientific information; is that correct?
13 A. That's correct.
14 Q. So the text was adopted with the modification of the
15 sticker?
16 A. The text was adopted with a stipulation that the sticker
17 would be in the text.
18 Q. Okay. You went ahead and voted for a text that included
19 empirical evidence for evolution because you thought that the
20 discussion that was enabled by the disclaimer of that as a
21 disputed view was sufficient; is that right?
22 A. I'm not sure that there's empirical evidence for
23 macroevolution. I think the definition of empirical is
24 something that can be witnessed by the eye.
25 Q. So regardless of your view of evolution, you voted for the
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1 text because you thought that the discussion that was enabled
2 by the disclaimer of that -- that, evolution -- as a disputed
3 view was sufficient; is that right?
4 A. That's correct, because our staff felt like the text as a
5 whole, not just as it dealt with evolution, but the text as a
6 whole was a good text and on that basis we adopted the entire
7 text.
8 Q. And that's because the school board doesn't have the
9 wherewithal to rewrite textbooks, does it?
10 A. Wouldn't begin to.
11 Q. The school board has received a fair amount of input from
12 the public about this issue, hasn't it?
13 A. Yes, sir.
14 Q. But you don't recall Marjorie Rogers' petition,
15 2300-signature petition; is that right?
16 A. I recall a petition. I'm not sure that it was Marjorie
17 Rogers' petition. I know a petition came in.
18 Q. There were several, weren't there, from different folks?
19 A. There was a good bit of paperwork with a lot of people's
20 names on it.
21 Q. Some petitions were from churches?
22 A. I don't recall exactly the petitions. I know we had some
23 petitions that came in.
24 Q. Do you recall petitions from professors at Emory?
25 A. I recall a letter.
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1 Q. Do you recall petitions from Georgia Tech?
2 A. I think we had five institutions that wrote letters.
3 Q. The University of Georgia?
4 A. (Witness nods head.)
5 Q. Yes? She takes down words.
6 A. I'm not sure whether it was University of Georgia or not.
7 I know we had five institutions.
8 Q. Georgia State University, do you recall that one?
9 A. I don't recall that specifically, no.
10 Q. Kennesaw State University, do you recall that one?
11 A. I don't recall, for sure I don't recall. I know there
12 were five universities. And I remember one of them
13 specifically, I thought whoever drafted the letter probably
14 ought to go back to English class. Kind of a poor letter to
15 come from an institution of higher learning, yet they were
16 lecturing us on other areas and I'm not sure they were experts
17 on it, either, but I know their English left a lot to be
18 desired.
19 Q. So you did receive letters sent by members of the
20 scientific community; is that right?
21 A. We received letters sent by five universities, yes, sir.
22 Q. But you threw them all away; is that correct?
23 A. After the discussion, after the decisions were made.
24 Q. You contend that there are two sides to the controversy
25 about evolution; is that right?
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1 A. That is absolutely correct.
2 Q. And they break down to those who believe there is a
3 scientific basis for evolution and those that don't; is that
4 right?
5 A. Well, I think there are those who question the science of
6 evolution and some people contend that certain principles of
7 science would contradict certain claims of evolution.
8 Q. All right, I'm not sure I got an answer to my question.
9 Do you contend that the two sides of the controversy break down
10 to those who believe there is a scientific basis for evolution
11 and those that don't? Yes or no?
12 A. Just give me a minute, I'm thinking. You had a lot longer
13 to work on your questions than you're giving me to work on my
14 answers. How about reading the question one more time?
15 Q. You contend that the two sides of the controversy break
16 down to those who believe there is a scientific basis for
17 macroevolution and those who don't?
18 A. Well, I'm not sure that those who disagree with it say
19 that it's absolutely no scientific basis for it, but I think
20 there are some scientific contradictions that may exist and I
21 think that's why the controversy is there. And there are some
22 people who question the scientific assumptions that evolution
23 is based on.
24 Q. The controversy turns on the concept of did the whole
25 thing come about from a random series of events, or is there
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1 order in the species, correct?
2 A. I think that's part of the controversy.
3 Q. Was it random or is there a discernible pattern in the
4 theory of origin; is that correct?
5 A. I think that's part of the controversy in people's minds,
6 yes, sir.
7 Q. Is it your view that macroevolution is not a fact?
8 A. It's my view, not as a scientist but as a layman, I don't
9 believe that the case has sufficiently been made for complete
10 proof of macroevolution.
11 Q. All right. What I asked you is is it your view that
12 macroevolution is not a fact. You have every right to explain
13 your answer, but it will help me a lot if you start with yes or
14 no.
15 A. I don't believe it's a proven fact, no. Excuse me, no, I
16 don't believe it's a proven fact.
17 Q. Thank you. Is it your view that macroevolution should not
18 be taught as fact?
19 A. I don't believe it is a fact.
20 Q. My question was, if you can answer yes or no and then feel
21 free to explain as long as you need, is it your view that
22 macroevolution should not be taught as fact?
23 A. Yes.
24 Q. And the disclaimer, in fact, says that evolution is a
25 theory, not a fact, doesn't it?
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1 A. That's correct.
2 Q. The disclaimer expresses a viewpoint that evolution is
3 only a theory, does it not?
4 A. That's correct.
5 Q. And you figure that's why they call it the theory of
6 evolution, correct?
7 A. Well, I think that's what the textbooks call it, is the
8 theory --
9 Q. If you can answer. Again, you have every right to explain
10 your answer, I don't want to cut you off, but if you can answer
11 first yes or no and explain. You figure that's why they call
12 it the theory of evolution?
13 A. Not only that I figure that, but it is called the theory
14 of evolution. Whether I figure that or not is of little
15 consequence, but it is called the theory of evolution.
16 Q. The statement, "Evolution is a theory, not a fact," is an
17 assertion, is it not?
18 A. It is.
19 Q. And it expresses a particular point of view, does it not?
20 A. It does.
21 Q. That evolution should be carefully considered, only
22 evolution should be carefully considered is also an assertion,
23 isn't it?
24 A. I think everything in science ought to be considered. But
25 evolution is the only area that the sticker deals with, but
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1 certainly you would critically consider all areas of science.
2 I don't think there is another area of science that has the
3 controversy surrounding it that evolution does.
4 Q. You posit that the only way a student could avoid being
5 exposed to the viewpoint expressed in the disclaimer is by
6 proving evolution is fact; is that correct?
7 A. I'm not sure I understand your question.
8 Q. You posit that the way a student could avoid being exposed
9 to that viewpoint is by proving evolution as fact; is that
10 correct?
11 A. As to which viewpoint?
12 Q. The disclaimer.
13 A. I'm not sure I understand what you're asking.
14 Q. All right. The disclaimer is in every single textbook?
15 A. Not every single --
16 Q. That deals with evolution.
17 A. Yes, sir, supposed to be.
18 Q. And there's no way a student could avoid that disclaimer;
19 is that right?
20 A. Well, they wouldn't have to read it every day, they don't
21 have to look at it, but it's in the textbook.
22 Q. So a student could flip past the cover?
23 A. Absolutely, which they do every day.
24 Q. All right. So you wouldn't posit that the way the student
25 could avoid being exposed to that viewpoint is by proving
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1 evolution as a fact? Yes or no?
2 A. That still -- no. They'd still be exposed to that view.
3 Q. Okay. Let me ask you to turn to your deposition, page 81.
4 A. Okay.
5 THE COURT: What was the question asked? Read the
6 question asked before you read the response.
7 Q. (By Mr. Manely) You posit that the way a student could
8 avoid being exposed --
9 THE COURT: I mean the question in the deposition.
10 MR. MANELY: Okay.
11 Q. (By Mr. Manely) "So how could a student avoid being
12 exposed to that viewpoint if they didn't want to be exposed to
13 it?"
14 And on page 81, line 12 of your deposition, your
15 answer was? If you could read it.
16 A. "I guess they could prove it as a fact."
17 Q. The Cobb school board disclaims no other scientific
18 theories besides evolution, do they?
19 A. Not to my knowledge.
20 Q. Do I understand correctly you do not hold any degree in
21 science; is that right?
22 A. You are correct.
23 Q. And you don't consider yourself a scientist in any way?
24 A. No.
25 Q. Do I understand correctly that you did not study anything
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1 in particular to arrive at a judgment that there is no proof of
2 macroevolution?
3 A. Nothing in particular. I read a great deal of the
4 information that was sent me during this process.
5 Q. So you read the information that was sent to you --
6 A. I didn't read all of it. I read a good part, portion of
7 it.
8 Q. And it was the information that supported the opinions
9 that you're expressing today about the quality of evolution?
10 A. I read the portion that was submitted that was on both
11 sides of the issue.
12 Q. Okay. The school board discussed the disclaimer, didn't
13 it, before it adopted it?
14 A. They did.
15 Q. And it was a particularly contentious discussion, was it?
16 A. I don't recall it being contentious. It was a unanimous
17 vote.
18 Q. And the board voted to adopt the textbooks once you all
19 had agreed upon the disclaimer; is that right?
20 A. That's correct.
21 Q. And the sticker was an outgrowth of the fact that the text
22 taught macroevolution as fact; is that right?
23 A. In my mind it was. I can't speak for the other school
24 board members.
25 Q. Did you read the texts?
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1 A. No, not in its entirety.
2 Q. You read them in part?
3 A. Read part of them, looked at them.
4 Q. The purpose of the disclaimer is to pursue and facilitate
5 open discussion in the classroom about controversial issues of
6 a scientific nature; is that right?
7 A. That's correct.
8 Q. So the decision of the board was to have open discussions
9 about controversial disputed issues in science; is that right?
10 A. That's correct.
11 Q. You don't know how science uses the word "theory," do you?
12 A. Not definitively, no.
13 Q. But it's not your job to prove or disprove a scientific
14 issue, is it?
15 A. No.
16 Q. You think it's your job to facilitate discussions in
17 classrooms that are open on disputed views?
18 A. Yes.
19 Q. And you want to facilitate a discussion in the classroom
20 on disputed views pertaining to macroevolution?
21 A. Yes.
22 Q. And that includes creationism and intelligent design?
23 A. No.
24 Q. Now, the administration had a different language, didn't
25 they?
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1 A. Different language from what?
2 Q. Different language than the disclaimer that was adopted by
3 the board.
4 A. The board -- I don't think they had it before the board
5 adopted the disclaimer.
6 Q. No, that wasn't my question. The administration -- I
7 didn't mean for that to be my question. The administration
8 proposed different language than that which is in the
9 disclaimer; is that right?
10 A. I'm not sure they proposed it. There was some discussion
11 about different statements and --
12 Q. Do you recall -- I don't mean for this to be a guessing
13 game. Let me hand you what's been admitted as Plaintiffs'
14 Exhibit 2 and see if you recall this as being the language
15 proposed by administration?
16 A. Yeah. And I think this came after the textbook adoption.
17 Q. You rejected that language, didn't you?
18 A. After the textbook adoption?
19 Q. When that language was proposed to you, the language in
20 Plaintiffs' Exhibit 2 --
21 A. The board had already adopted the language that was going
22 to go in the sticker and it was read into the record of a night
23 board meeting.
24 When the textbook adoption took place, the sticker
25 language was part of that motion and it was read into that
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1 language of the motion to adopt.
2 Q. My question was the language that the administration
3 proposed as evidenced by Plaintiffs' Exhibit 2, the board
4 rejected that language, didn't they?
5 A. Yes, because it came after the board had already
6 stipulated what the language would be. The board had already
7 said what the language was.
8 Q. You thought that the language that the administration
9 proposed was too weak, didn't you?
10 A. No. Actually, I thought it was pretty highhanded because
11 they attempted to submit language that was different than what
12 we had adopted in a public meeting and that's not their purview
13 to do that. If they want to do that, they need to come to the
14 board and say we'd like for you to consider a change in the
15 language, which they did not do. They submitted this language
16 as if it were the language that we had adopted and put it up.
17 Q. So you don't remember having the opinion that the problem
18 with the language was that it was weak?
19 A. Oh, yeah, I thought the administration's language was
20 weak.
21 Q. The language as expressed in Plaintiffs' Exhibit 2 there
22 before you?
23 A. That's correct, I thought it was weak. I think there's a
24 supposition in there that I'm not sure you could prove.
25 Q. That's all I have. Thank you.
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1 A. Okay.
2 THE COURT: Mr. Gunn?
3 THE WITNESS: Do you want your exhibit back?
4 MR. MANELY: Yes, sir, thank you.
5 THE WITNESS: I hate for you to lose that.
6 DIRECT EXAMINATION
7 BY MR. GUNN:
8 Q. Mr. Tippins, I have just a couple questions for you. Do
9 you have your deposition handy there?
10 A. Yes, sir.
11 Q. Mr. Manely asked you in great detail about how the
12 analysis works, if you determine whether a subject is legal for
13 inclusion in the curriculum or whether you determine that it's
14 worthy for inclusion in the curriculum. I'd like you to just
15 read your response at the bottom of page 56 to page 57, line
16 25.
17 A. Page 56, line 25?
18 Q. Right, continued on the next page.
19 A. "If you can't legally teach it, whether it's worthy makes
20 no difference in my mind. If you've got a legal preclusion you
21 can't teach it."
22 Q. That was your testimony after many, many questions about
23 whether it was worthy or whether it was legal in your
24 deposition, right?
25 A. Yeah. It's kind of like which comes first, the chicken or
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1 the egg, there's two prongs.
2 Q. Did you get an opinion that it was not legal to teach
3 creationism?
4 A. We did.
5 Q. Did you get an opinion that it was not legal to teach
6 intelligent design?
7 A. I think what we -- the difference in my mind -- yes, we
8 got that opinion.
9 The difference in my opinion was, or the difference
10 in my mind, the decision about creationism was by the Supreme
11 Court. And I think the intelligent design was a Kansas case,
12 and I don't recall whether that was a federal case or what it
13 was. But, I mean, in my mind they didn't have the same
14 standing, but I knew a Court had held that you could not teach
15 intelligent design, but I don't know from a precedent
16 standpoint.
17 Q. So you raised the issues and then you were told you
18 couldn't teach them?
19 A. Right.
20 Q. And according to your testimony, if you can't teach it,
21 you can't teach it?
22 A. That's correct.
23 Q. Did any scientist express the viewpoint during this, other
24 than Dr. Combs that you testified to, did any other scientist
25 express the view that there were any disputes about
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1 evolutionary theory of a scientific nature?
2 A. We got information that was sent to us, I'm not sure it
3 was verbal testimony, but we had information sent, some
4 publications. And I think one of them said a hundred
5 scientists and it gave their credentials and they came from,
6 you know, well-known universities, that questioned some of the
7 scientific premises and assumptions of macroevolution.
8 And if I might just, I mean, nowhere along the line I
9 don't think has anybody questioned microevolution.
10 Q. Okay. Do you feel like you have a good understanding of
11 the science behind intelligent design?
12 A. No.
13 Q. Okay, just general knowledge?
14 A. Just general knowledge, and very scarce at that.
15 Q. When the issue regarding whether this was an appropriate
16 text came up, was that something you thought up or was that
17 something that someone brought to you? Do you remember?
18 A. Again, I'm not sure which came first. I mean, the issue
19 was raised by the community.
20 Q. Do you remember which board member raised that concern
21 first?
22 A. I know I raised the concern. I'm not sure if another
23 board member did.
24 Q. Okay. You think you raised it early on?
25 A. It was in a work session when it first came to the board.
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1 When the first discussion on the textbook adoption took place
2 in a board setting it was a work session, which is the first
3 step in the process, and I know it was in that context that I
4 raised that.
5 Q. And you told Mr. Manely you wanted to teach disputed
6 views. Did you mean religious views or did you mean scientific
7 views?
8 A. Scientific views.
9 Q. Okay. You don't, as a board member, you don't teach
10 science classes, right?
11 A. No.
12 Q. You wouldn't be qualified to teach science classes?
13 A. Absolutely not.
14 Q. How do you, as a board member, have control over what's
15 taught in the classroom to any degree?
16 A. We adopt curriculum and we set policy.
17 Q. Okay. I'll show you what's been marked as Defendants'
18 Exhibit 5. Can you identify that?
19 A. Okay.
20 Q. Can you tell me what that is?
21 A. This is a regulation that was adopted by -- that was
22 formulated by administration.
23 Q. I believe that's the policy, right?
24 A. Pardon?
25 Q. That's the policy, right?
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1 A. Yeah, I'm sorry, it is policy. It's not a regulation.
2 Q. Did you vote for that?
3 A. I did.
4 Q. Can you identify Defendants' Exhibit 6?
5 A. Yes, sir.
6 Q. What is that?
7 A. This is a regulation.
8 Q. You have to affirmatively vote for a policy, but not for a
9 regulation, right?
10 A. That's correct.
11 Q. Did you agree with everything in that regulation?
12 A. No, sir.
13 Q. What didn't you like about it?
14 A. I thought it was pretty weak. I don't think there's any
15 question that in the scientific community -- I don't have the
16 numbers on percentages of majority or minority, but I think
17 there's a controversy in the scientific community about the
18 evidentiary side of evolution and there's definitely a
19 controversy in the general public. I didn't think that this
20 regulation dealt enough with the controversy that evolution
21 raises itself in the scientific areas.
22 Q. Okay, not a religious controversy, but your understanding
23 of the science and the scientific dispute?
24 A. That's correct.
25 Q. How many complaints or concerns have you heard about that
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1 religion is being taught in science classrooms in Cobb County
2 School District?
3 A. In two years with a hundred three, almost, thousand
4 students, zero.
5 MR. GUNN: That's all I have.
6 THE COURT: Anything on recross-examination?
7 MR. MANELY: Yes, sir, briefly, hopefully.
8 RECROSS-EXAMINATION
9 BY MR. MANELY:
10 Q. Did I understand you correctly to say that you received a
11 lot of information from the public pertaining to the issues
12 we're talking about today?
13 A. Considerable amount, yes, sir.
14 Q. And that you received information on intelligent design as
15 well?
16 A. That's correct.
17 Q. And that you reviewed this information?
18 A. I did, some of it.
19 Q. You contend that you did review information of the
20 material you received on this issue?
21 A. I reviewed some of it. I can't tell you that I reviewed
22 all of it. I mean, I was sent some books and I didn't even
23 read the books because I didn't have time to read the books.
24 Most of the letters, e-mails, short publications, articles, I'd
25 try to read. But to read an entire book, I didn't read any of
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1 the books that were sent to me because I didn't have the time
2 to.
3 Q. Including the material on intelligent design, did you
4 review some of that?
5 A. Publication articles and opinions, e-mails, those type of
6 things. I did not read any of the books on intelligent design.
7 Q. Okay, but you read some of the material on intelligent
8 design?
9 A. Yeah.
10 Q. Sir, let me ask you to turn to your deposition, page 33.
11 Are you there?
12 A. I believe so.
13 Q. And at the top of the page -- well, to go straight to the
14 question, do you see line 18 where I ask: "Did you review it?"
15 And your answer was?
16 A. "No." I'm talking about the books that I've seen, not the
17 e-mails or publications but actually books or treatises on
18 them.
19 Q. Okay. So when I asked you right after that: "You didn't
20 review the information about intelligent design?"
21 And your answer was: "No, sure didn't."
22 A. That's correct, the books. I mean, I told you I didn't
23 read any of the books on it.
24 Q. So when we were talking about you heard from folks in the
25 scientific community on both sides of the issue, you said you
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1 had all kinds of information; is that correct?
2 A. That's correct.
3 Q. See there, your answer on 16?
4 A. That's correct.
5 Q. And my question was: "Well, did you review that, all
6 kinds of information?"
7 And your answer was, unequivocal then, you said:
8 "No."
9 A. Wasn't talking about all of it I didn't review it. I'm
10 talking about I did not review it in its entirety.
11 Q. I'm sorry, maybe I'm missing that sentence in here. When
12 I said "Did you review it" in your deposition your answer was
13 not "I did not review it in its entirety." When I asked you,
14 under oath, in June '03, "Did you review it," your answer was
15 one word: "No."
16 A. Well, I'm sorry, I must have misunderstood your question
17 at the time.
18 Q. But I am --
19 A. I'm real clear that --
20 Q. But I am reading your deposition correctly, am I not?
21 A. I believe that's correct.
22 Q. Your answer was "no"?
23 A. I believe that's correct, yes, sir.
24 Q. Now, all this information about a controversy that you're
25 talking about, you can't cite for us any publication, can you?
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1 A. No, sir.
2 Q. You think you read it somewhere in the Atlanta Journal
3 Constitution; is that right?
4 A. I did that.
5 Q. And, in fact, as someone who is in charge of taking care
6 of our students' precious minds, I'm sure that you have
7 extensively and exhaustively looked at Scientific American's
8 article on evolution?
9 A. No, I haven't.
10 Q. I'm sure that you've just picked up the most recent copy
11 of the National Geographic so that you could find out what
12 science's position is on evolution, have you not?
13 A. As a matter of fact, I did. And it also says there's
14 about 45 percent of the people in the American population that
15 has consistently for the last 40 years had serious questions
16 about the validity of evolution. That's in that article.
17 Thank you.
18 Q. Yes, sir, yes, sir, it is. And let me ask you, if we ask
19 the population to take a vote on the sex of a rabbit, would the
20 majority decision of that population make the rabbit male or
21 female?
22 A. It may to you. It wouldn't to me.
23 Q. Yes, sir. Is it your position that intelligent design
24 would be one of the scientific theories of origin you're
25 referring to so long as it utilizes a scientific method?
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1 A. I don't think we said anything about teaching intelligent
2 design.
3 Q. My question to you, sir, was would intelligent design be
4 one of the scientific theories of origin so long as it utilizes
5 a scientific method?
6 A. I don't think I can comment on that. I don't know.
7 THE COURT: Excuse me. We're going to take a
8 15-minute recess.
9 (Recess.)
10 THE COURT: Thank you. Please be seated.
11 Go ahead, Mr. Manely.
12 MR. MANELY: Thank you, sir.
13 Q. (By Mr. Manely) Just very briefly, Mr. Tippins, where we
14 were before the break, would you consider your -- start again.
15 Would you consider intelligent design one of the scientific
16 theories of origin other than macroevolution?
17 A. I don't know that I can comment on that.
18 Q. Pardon me, sir?
19 A. I don't know that I can comment on that as an expert. I'm
20 not sure.
21 Q. Would you consider it, if it used the scientific method,
22 it would be scientific?
23 A. I think if intelligent design raises scientific issues
24 about the theories of origin they certainly could be discussed.
25 The scientific issues that are raised, not necessarily in the
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1 cloak of intelligent design, but in the light of the scientific
2 issues it may be addressed.
3 Q. Because you do understand that intelligent design posits
4 the existence of a designer, right?
5 A. Yes.
6 Q. Okay. And do you understand the positing a designer or
7 creator might be a violation of somebody's religious beliefs;
8 is that correct?
9 A. That's correct. I don't think you'll find us teaching
10 intelligent design.
11 Q. But do you assert that belief in a creator that is not a
12 specific creator does not make someone religious?
13 A. Read that one more time.
14 THE COURT: Go ahead, rephrase it.
15 Q. (By Mr. Manely) Do you assert that belief in a creator
16 that is not specific does not make someone religious?
17 A. I do.
18 Q. Okay. So you don't see that if you're teaching a doctrine
19 that says there is a creator that you are teaching a religious
20 doctrine if that creator is not specific?
21 A. I guess it depends on what your definition of religion is.
22 I think there are people who believe there is a god and there
23 is a creator who have no outward representation of belief in
24 their lives.
25 Q. I'm not sure I follow you. What I'm meaning to ask is if
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1 you are teaching a doctrine that says there is a creator, are
2 you teaching a religious viewpoint?
3 A. Well, I've answered it the best I know how. I think there
4 are people who believe there is a creator who are not religious
5 people.
6 Q. Okay. Thank you, sir. Nothing further.
7 THE COURT: Mr. Gunn?
8 MR. GUNN: Very briefly, Your Honor.
9 REDIRECT EXAMINATION
10 BY MR. GUNN:
11 Q. Do you have your deposition, Mr. Tippins?
12 A. I do.
13 Q. We've been over and over this. You don't know of anyone
14 teaching intelligent design or creationism in Cobb schools?
15 A. I'll promise you, no. If it had been the case there would
16 have been all kind of issues raised over that.
17 Q. If you could turn to page 53 of your deposition, line 18.
18 If you could read your testimony, this was at the end of --
19 toward the end of your deposition.
20 "So if I understand you correctly, you don't have a
21 comfort level that scientific creationism or intelligent design
22 should be taught in the classroom?"
23 And your response was what?
24 A. "I think science ought to be taught in the science
25 classroom."
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1 Q. And the question was: "And intelligent design and
2 scientific creation are not science?"
3 And what was your response?
4 A. "I'm not competent to make that decision but I think that
5 the decision that we made was that we would adopt the text as
6 it was written and we did encourage a full range of discussions
7 of scientific issues and scientific information."
8 MR. GUNN: Thank you.
9 MR. MANELY: No recross, Your Honor.
10 THE COURT: Thank you, you may step down.
11 Call your next witness.
12 MR. MANELY: Your Honor, we would like to call Jeff
13 Selman.
14 THE COURT: Please step up, face me, and raise your
15 right hand.
16 JEFFREY MICHAEL SELMAN,
17 having been first duly sworn, was examined and testified as
18 follows:
19 THE COURT: Please be seated.
20 Your witness.
21 MR. MANELY: Thank you, sir.
22 DIRECT EXAMINATION
23 BY MR. MANELY:
24 Q. Mr. Selman, where do you live? Let me put it this way,
25 for safety sake, what county do you live in?
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1 A. Cobb County, sir.
2 Q. Do you pay taxes in Cobb?
3 A. Yes, I do.
4 Q. Do you also pay school taxes?
5 A. Yes.
6 Q. Do you have any children?
7 A. Yes.
8 Q. And I understand your child has not yet gotten as high as
9 middle school, right?
10 A. That's correct.
11 Q. Through no fault of his own, he's only still in fifth
12 grade, correct?
13 A. That's correct.
14 THE COURT: Just for the record, state your name.
15 THE WITNESS: It's Jeffrey Michael Selman.
16 THE COURT: Go ahead.
17 Q. (By Mr. Manely) Do you have any particular religious
18 faith?
19 A. Yes, sir.
20 Q. And I understand that your child is presently studying for
21 his bar mitzvah?
22 A. That is correct.
23 Q. What do you presently do for a living?
24 A. I'm a computer programmer.
25 Q. Before you were a computer programmer or at any point were
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1 you also a teacher?
2 A. Yes, I was, sir.
3 Q. History teacher?
4 A. I was a licensed high school history teacher in New York
5 City.
6 Q. What is GCISE?
7 A. It's an acronym for Georgia Citizens for Integrity in
8 Science Education.
9 Q. And are you a member of that?
10 A. Yes.
11 Q. Have you also been a judge at the Science Olympiad?
12 A. Yes, I have been.
13 Q. Are you familiar with the disclaimer that was imposed by
14 the Cobb school board on the textbooks pertaining to evolution?
15 A. Yes, I am.
16 Q. How did you hear about that disclaimer?
17 A. I was reading Creative Loafing and it was right on the
18 front cover of it, and this is quite a while back now, and
19 that's when my attention was first drawn to it. It was kind of
20 like I was sleepwalking through my life here. You know, you
21 assume certain things are already accomplished in the society
22 and resolved and all of a sudden this thing reared its head and
23 I seen it on the paper.
24 Q. Have you had a chance to become familiar with the specific
25 language of the disclaimer?
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1 A. Somewhat.
2 Q. What is your problem with the disclaimer?
3 A. Can I have a copy of it in front of me?
4 Q. Yes, sir. I hand you what's been marked Plaintiffs'
5 Exhibit 1.
6 A. Thank you.
7 Q. What problems do you have with the disclaimer?
8 A. Okay. Right off the bat, by singling out evolution, okay,
9 that raises a flag to me.
10 Q. Can you quote the portion of the disclaimer that you're
11 specifically referring to?
12 A. Well, it says: "This book contains material on evolution.
13 Evolution is a theory, not a fact, regarding the origins of
14 living things."
15 Immediately it singles out evolution. Historically
16 in this country -- maybe other places, too, but I'm only
17 familiar with this country -- as soon as evolution is raised
18 and people say no, it's a religious issue immediately. Nobody
19 else attacks evolution in the science curriculum except people
20 with a specific religious bent. And so I said, here we go
21 again.
22 Also that the first line says: "This textbook
23 contains material on evolution." Yeah, and it contains a lot
24 of other things also, why is this having to single out
25 evolution?
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1 When I tell somebody something, if I start out by
2 saying everything after what I'm going to tell you right now is
3 a lie, it is not the truth, it's not factual, but I want you to
4 get into this and understand it and use it and it's going to be
5 valuable to you in your life, and then I proceed to tell them
6 something that they absolutely need for their life, like this
7 is how you pass your driving test, okay? Well, why should they
8 believe me? I've already told them it's not the truth.
9 And that's what this does here. It says here's this
10 perfectly good science book we have that has evolution in it,
11 don't believe anything in it because it's not a fact.
12 And evolution is a fact. It happens, it happened,
13 it's going on now. The specific mechanisms in which evolution
14 takes place, you know, new data comes in, we reevaluate the
15 theory and it changes appropriately within the scientific
16 community as to how it's happening.
17 The fact it happened, it's a fact, it occurred, it's
18 going on and it always has gone on since the Earth came into
19 being, you know.
20 So this is definitely something that contradicts that
21 and says evolution is not the truth, okay. And within the
22 scientific community, okay, there is really no conflict that
23 evolution is a fact. This only comes in from external sources
24 that are religious and that's been my experience.
25 The last part is absolutely superfluous. I mean, why
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1 have an education system if that's not what you're teaching.
2 This should be a given.
3 Q. Okay, again, the last part, could you read the last part?
4 A. It says: "This material should be approached with an open
5 mind, studied carefully, and critically considered."
6 No kidding. I taught for ten years. I mean, I made
7 that clear to all my students, anything you get, anything we
8 discuss, I want your mind open, evaluate it, and at the same
9 time, while that was going on, it was letting them know, I was
10 letting them know that the information I'm giving them is based
11 upon facts.
12 Okay, if I was doing literature, well, now we're
13 getting into opinion. If we're doing something subjective I
14 let them know that was subjective, it was based upon opinion.
15 Science, opinion comes in at the early stages when
16 you do hypotheses, okay, guesses, you know, assumptions. But
17 once you start doing the experimentation or the observation,
18 because some things are hard to experiment with but you see
19 results of things, and so you look at them, you put the pieces
20 together, you say, well, there's that fossil, there's this
21 genetic device that, gee, it's the same thing in this other
22 creature, somehow they're related. These things are valid,
23 these are facts, you can see them. Compiled they make the fact
24 of evolution. Evolution happened.
25 So this sticker is absolutely -- you know, it doesn't
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1 say God, it doesn't say Bible, it doesn't say any of that, but
2 it's obviously religious. You know, if you pluck the feathers
3 off a duck it's still a duck. This is just another iteration
4 of the same stuff in the past.
5 Q. Are you familiar with anything, any sect in society, any
6 branch that argues you should throw evolution out, it is
7 suspect, it is not a fact, that calls evolution into question?
8 A. Well, I can't give any specific name but I've encountered
9 lots of people, especially since this reared its head.
10 Q. What I mean is besides religion.
11 A. No.
12 Q. When you learned about the disclaimer of evolution what
13 did you do about it?
14 A. Well, I went to a school board meeting and I called up
15 some people. I called up the ACLU. I called up Americans
16 United. I called up everybody I knew that might be doing
17 something about this that I felt I wanted to join and add
18 support.
19 Q. Does the -- and you got some support, didn't you?
20 A. Yes, I did.
21 Q. Does the disclaimer offend your religious beliefs?
22 A. Absolutely. This being a religious statement, okay,
23 usurps my position as a parent with my child. It's not the
24 school's position to teach any religious position. Okay?
25 That's my job. The school is supposed to teach my child facts
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1 that he can use in the society to make a living, to grow up to
2 be a good citizen and an informed person, okay? His faith is
3 my responsibility, it's not the school's, and this definitely
4 steps on my feet. I don't mean to be so but it's a big issue.
5 Q. Being kind of the person up front and out front about this
6 issue, has it been somewhat dangerous for you?
7 A. Yes, it has. I've received several death threats. My
8 child has been accosted once by another kid in his school. You
9 know, I received phone calls, you know, that were, why don't
10 you go back to where you belong. I'm an American, I said, this
11 is where I came from, I'm here, I don't have to go back
12 anywhere, I've arrived.
13 Q. Now, you're familiar with the sticker that the school
14 administration proposed after the board had imposed its
15 language on the textbooks, you've read that?
16 A. Yes, I've seen it. Now, I'm confused by that, though,
17 because I'm not sure of the time sequence.
18 Q. Okay. Let me provide to you Plaintiffs' Exhibit 2. Now,
19 do we understand that the disclaimer was imposed by the board
20 on March 28, 2002? Do you see that on --
21 A. Yes.
22 Q. -- Exhibit 1? And Plaintiffs' Exhibit 2, the language
23 proposed by the administration was proposed, I think in June,
24 some three months later; is that right? June 2002?
25 A. I see that now, yeah. I was unaware of the discrepancy.
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1 I thought this came first.
2 Q. All right. So reviewing the language that the
3 administration proposed after the board imposed its disclaimer
4 on the textbook, do you have any concerns about the language of
5 that sticker, the administration sticker?
6 A. Yeah. Again, it separates evolution out from the rest of
7 the body of knowledge of science.
8 And there's no need for a sticker in the book, okay?
9 And, you know, yeah, it may be better than that one but, you
10 know, if you've got lemon you try to make lemonade, it's still
11 made from lemons so, you know, I don't like it.
12 Q. The board's disclaimer with regard to whether or not you
13 are in the in with the government or out with the government,
14 how does it make you feel?
15 A. Well, I don't get warm fuzzies that I'm a participant in
16 this society. I mean, there's been articles written and a TV
17 show appeared just before, I think the May 26th -- I forgot
18 exactly when it was. But there was -- Larry Taylor was one of
19 the parents at the meeting and bought some time and he was
20 proposing all this intelligent design nonscience. Okay.
21 The more it came up, you know, it just makes me feel
22 isolated from it because it all has a Christian bent. And I
23 have nothing against anybody's religion. I'll stand shoulder
24 to shoulder with anybody of faith or nonfaith or anything if
25 anybody attacks their right to believe what they want to. But
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1 at the same time, I don't want to fabricate what science is. I
2 want valid education for our kids.
3 I mean, we're a technologically advanced society. If
4 we start going back to eighth century thinking, where are we
5 going to be? And that doesn't demean anybody's faith. I'm a
6 man of faith, my family is a man -- people of faith. I mean,
7 I'm raising my child in an Orthodox temple. He's studying with
8 an Orthodox rabbi right now for his bar mitzvah. Okay? I want
9 him to know he's Jewish. I want him to know there's a God.
10 But that's my job, that's not the school's.
11 And when the school does something like this and
12 people start advertising all over the place, I just don't feel
13 part of what America is. It's supposed to be a free place, not
14 a repressive place. And teaching science in a science class is
15 not repressing anybody's religion.
16 Again, there's an opportunity for comparative
17 religions. Take your child to church on the weekend, to
18 temple, to a mosque, I don't care. I will defend your right to
19 do that, but let's keep science honest.
20 Q. Thank you.
21 THE COURT: Is it your point of view that evolution
22 and religion cannot coexist --
23 THE WITNESS: They do coexist.
24 THE COURT: -- in an educational context such as the
25 one here?
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1 THE WITNESS: I would have to say that's true.
2 THE COURT: I just want to know.
3 THE WITNESS: Okay.
4 THE COURT: And you say when you saw the word
5 "evolution" and saw that it was singled out, that you felt that
6 this was done by people who oppose religion or -- who are
7 opposed to evolution but embrace religion?
8 THE WITNESS: Yes. Can I expound a little?
9 THE COURT: Sure.
10 THE WITNESS: Okay. It's been my experience,
11 especially as a history teacher, that this kind of problem is a
12 societal problem; it's not a science problem. Okay? The
13 people of faith feel it's an undermining of what they believe
14 and I'm not trying to reconcile the two in a societal sense.
15 Because in a science sense, I like to make the analogy, and in
16 science it's a good one, I think, when you have quantum
17 mechanics versus relativity, they're both valid within the
18 realm of their physics and the equations used to explain them
19 work. But if you take the equations from relativity and try to
20 use them in quantum mechanics they fail. You're jumping from
21 one realm to another. They haven't found a way to put them
22 together.
23 In my faith, okay, when they talk about in the Bible
24 that God created Adam out of the mud of a river, why is that
25 different than primordial ooze that could have formed genetic
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1 chains from, you know, different proteins that came together
2 form the same cell? Why is that different? Why does that have
3 to be a conflict? It's not science coming from the Bible but
4 it's an explanation to bring the two together. And in my world
5 with my child, so he can coexist with his faith, as well as
6 with the science, I want him to understand and learn.
7 And, again, when science is taught in the schools --
8 and I taught science a little bit also because I taught
9 elementary school because in New York you can teach below the
10 level of your license, so I started out as an elementary school
11 teacher.
12 When the science classes came up I taught them what
13 the science was. No one has to believe it. They don't have to
14 say -- pardon the expression -- it's gospel. They just have to
15 understand it, incorporate it, and grow from it and understand
16 that it's another way of viewing the world that has just as
17 much validity as faith.
18 THE COURT: Do you think that this sticker prevents
19 students from understanding evolution?
20 THE WITNESS: Oh, absolutely. How can you understand
21 something when it's a lie? Why should I believe it? Nothing
22 in it is true. It says it's not fact.
23 Well, if it's not fact, what's the opposite of that?
24 Not truth. Why should I have to -- why is it being taught to
25 me, then? Why am I wasting my time here?
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1 Our whole society is based upon these concepts that
2 caused evolution to evolve. The scientific method can't be
3 picked and choosed when you want to use it. An airplane flies
4 for a reason, gravity works for a reason, chemical reactions
5 work for a reason. We discovered these things through the
6 scientific method.
7 Well, we discovered evolution works through the
8 scientific method also. You can't throw it out because it goes
9 against my faith. Let's find a way to reconcile it. Okay,
10 again, reconcile outside the classroom. You still have to
11 teach the facts. Thank you, sir.
12 THE COURT: Thank you.
13 CROSS-EXAMINATION
14 BY MR. GUNN:
15 Q. Hi, Mr. Selman, how are you?
16 A. Doing good.
17 Q. You have one son?
18 A. That's correct.
19 Q. And he's in fifth grade?
20 A. That is correct.
21 Q. Has your son ever had a science curriculum which involved
22 the sticker that we're here about?
23 A. No. He's too young to have reached that level yet.
24 Q. Have you ever seen a book besides the one you've seen in
25 the courtroom here that has a sticker in it?
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1 A. I've seen a neighbor's, yes.
2 Q. Okay. When you filed this case in 2002, I think you had
3 never had any experience with it as far as your son, never,
4 ever seen the sticker in a book, correct?
5 A. Not concerning him, no, sir.
6 Q. You were -- would you describe yourself as very sensitive
7 about the intrusion of religion into everyday life?
8 A. Into everyday life?
9 Q. Yeah.
10 A. No.
11 Q. Do you consider yourself very sensitive to the possibility
12 of some intrusion of religion into any form of government?
13 A. Yes.
14 Q. Okay. This is not the only issue that you've adopted as a
15 potential threat to the establishment clause, is it?
16 A. What do you mean?
17 Q. Well, you threatened to -- at one point you were
18 considering suing the Cobb County Commission, which is a
19 different government, based on some of their practices, weren't
20 you?
21 A. I'm glad you changed the word because I'm not threatening
22 anybody. I've considered that sort of suit.
23 Q. Okay. You made a public statement that you might file
24 litigation against the Cobb County Commission?
25 A. That's valid.
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1 Q. And that related to religious issues in government, right?
2 A. Government should be religion neutral because we're all
3 citizens, we all have the right to believe as we will.
4 Q. Okay. You had another issue with the State of Georgia
5 Department of Education about their mandated character
6 education vis-a-vis religion, didn't you?
7 A. That is correct.
8 Q. Okay, tell the Court about that.
9 A. I think it was back in 1996, Linda Schrenko was
10 superintendent of schools for the state and she made some
11 statements about local governments being allowed to decide
12 whether or not creationism would be taught in the school
13 systems.
14 I read that in the paper and I called up the board,
15 State Board of Education and said, What's going on with this?
16 And they said, Well, right now we're going through a rewrite of
17 the state curriculum, the QCCs, and they said would you like to
18 get involved. And I thought, yeah, I'd get involved with this
19 issue because that was my issue. They wound up putting me on
20 the vocational educational committee because I was a recruiter
21 at the time.
22 But there was a lot of intermingling between the
23 different groups and the issue came up. And one of the things
24 I stressed in the vocational area was that we have to teach
25 ethics, okay, because there's a lot of bad ethics in business
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1 these days and people are doing the wrong things. And they
2 said, well, you can't go that way because it's religious. I
3 said ethics don't have to be religious, they just have to be --
4 you do the right thing. Okay? Well, they said, well, we'll
5 look at this and everything and it bandied back and forth.
6 And then, I don't know, a year or so later I met
7 General Redden at an East Cobb Civic Association meeting where
8 I'm liaison for my subdivision. And the issue came up, he
9 mentioned it in a speech. And I said this is not what we were
10 talking about when we were talking about bringing ethics into
11 the curriculum, you know. He said, well, it's not going to
12 pass, anyway, it's not going to happen.
13 Well, lo and behold, they came up with this character
14 curriculum and one of the things they had on one of the weeks
15 was respect for the creator. Now, that crosses a line because
16 not every religion posits a creator and whose creator and why
17 and it just didn't belong there.
18 So I raised an issue about it. I haven't been
19 successful on the state level but I have been successful in
20 Cobb County, they did remove it.
21 And they were very deceptive in the way they slipped
22 it in, also, because first they put it on a week just before
23 Thanksgiving when nobody probably would notice it and they
24 slipped it in with democracy slash respect for the creator.
25 And then the following year they did the same thing and then
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1 finally they figured nobody noticed it and they just put it out
2 in a week all by itself.
3 Q. So you, in the context of character education in the
4 public schools in the state of Georgia, you object to any
5 children being taught respect for the generic creator?
6 A. I think people should be taught respect. There's no
7 reason to isolate it. Again, if you have respect, you're going
8 to treat everybody's belief equally.
9 Q. Do you consider yourself knowledgeable about all aspects
10 of evolutionary theory?
11 A. I'm not an expert but neither am I a dilettante.
12 Q. Okay, so the answer is no?
13 A. It's not a strong no.
14 Q. What's your educational background?
15 A. I have a bachelor's in history and psychology and I took
16 several science classes because I like it.
17 Q. You understand that the nature of a scientific theory is
18 that it always is subject to dispute, to testing, to change
19 based on observable phenomena and based on hypotheses that are
20 made by scientists, don't you?
21 A. It changes because of new data coming in and reevaluation
22 of that data. It doesn't necessarily have to be disputes.
23 Disagreements over new data coming in may happen and they get
24 resolved, but they have to go through a certain process. If
25 they don't go through that process they don't get incorporated
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1 into the theory.
2 Q. Okay. And you were mentioning the fact that you felt
3 like, I don't remember the example you used, the quantum theory
4 belongs over here and --
5 A. And relativity.
6 Q. -- and relativity belongs over here and never the twain
7 shall meet, right?
8 A. Well, they're both valid and you can try -- they're trying
9 to unify, you know, all kinds of things right now. They
10 haven't found a way to do it yet. But they're both valid, they
11 don't discount each other. But sometimes if you intermingle
12 them it doesn't work anymore.
13 Q. Right, kind of like your view of science and religion,
14 never the twain shall meet, right?
15 A. Not in a science class. In my own life I found a way to,
16 not reconcile, accept it, because I find it valid.
17 Q. You can compartmentalize what you learn at temple and what
18 you --
19 A. I'm not compartmentalizing. I gave an example where I
20 said in the Bible Adam was created from mud from this river,
21 okay, and that seems to be a euphemism for evolution.
22 Q. If someone points out that there's scientific principles
23 and they're at odds with other scientific principles, is that a
24 scientific dispute or a religious dispute? Of the nature that
25 you just made, that there's certain theories that disagree with
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1 each other and, obviously, the goal of science is to --
2 A. Relativity and quantum mechanics don't disagree with each
3 other. Okay? They work in different areas at different times.
4 Okay? If I'm building a house, I'm not going to use a
5 mechanic's wrench that I would use to move -- remove an oil
6 filter from my car, it's not going to work in the house. Works
7 great on the car.
8 Q. Right. So making that distinction, that's a scientific
9 discussion; that's not a religious discussion, right?
10 A. Correct.
11 Q. Okay. In your understanding is evolution a theory or a
12 fact?
13 A. It's a fact.
14 Q. Okay.
15 A. If you use the word "theory" in the scientific sense, it's
16 a fact. If you want to go colloquially, then we have to change
17 the meaning of the word "theory" because it's not the same as
18 in the science realm.
19 Q. I'm going to show you what's been marked Defendants'
20 Exhibit 4, page 369, the second paragraph there.
21 A. Of the voyage of the Beagle?
22 Q. Second paragraph.
23 A. I see.
24 Q. Tells us what evolution is. If you had a question about
25 the sticker in the front of the book, you could turn to the
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1 beginning of the unit on evolution and learn what a theory is,
2 right?
3 A. You shouldn't have to have a problem with the sticker.
4 The sticker wasn't part of this book when it was published.
5 Q. That's true. Does it say evolution is a theory or a fact?
6 A. Let me read it, please.
7 Q. Okay.
8 (Pause.)
9 THE WITNESS: And your question?
10 Q. (By Mr. Gunn) Is evolution a theory or a fact?
11 A. A theory is a fact. The theory of evolution is a fact
12 because it's happened. It's a fact that evolution has
13 happened. So to call it not a fact is incorrect. It's made up
14 of other things and components, but the actual act of evolution
15 taking place is a fact. It did happen.
16 Q. So if Ken Miller says: "What scientific explanation can
17 account for the diversity of life? The answer is a collection
18 of scientific facts, observations, and hypotheses known as
19 evolutionary theory," you disagree with that?
20 A. No, I --
21 MR. MANELY: Judge, mischaracterization.
22 THE COURT: Wait, he read it to him, he read what Ken
23 Miller had in the text.
24 Did you read it verbatim?
25 MR. GUNN: Yes, sir.
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1 THE COURT: Okay. What's your objection to it?
2 MR. MANELY: Improper impeachment, it's a
3 mischaracterization of the evidence. I have not heard
4 Mr. Selman say that it cannot be both theory and fact.
5 THE COURT: I'm going to let him answer the question,
6 objection overruled.
7 THE WITNESS: Ask the question.
8 Q. (By Mr. Gunn) In this book Mr. Miller writes: "What
9 scientific explanation can account for the diversity of life?
10 The answer is a collection of scientific facts, observations
11 and hypotheses known as evolutionary theory."
12 Do you disagree with that?
13 A. It's a way of stating what I've said a different way.
14 Q. So you don't disagree with it?
15 A. No. But that doesn't discount the fact that evolution
16 happened. If something's happened --
17 Q. I understand your testimony.
18 A. Okay.
19 Q. You admit that there's some scientists who don't entirely
20 agree with all the evolutionary theory, don't you?
21 A. The number of scientists that disagree with evolutionary
22 theory is minuscule. They come to the table with a previous
23 agenda.
24 Q. Okay. So to your understanding, every scientist who
25 disputes any portion of evolutionary theory is motivated by
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1 religion? Is that what you're saying?
2 A. From my experience I'd say yes.
3 Q. Okay.
4 A. And the number is minuscule, again.
5 Q. Did you -- you were here yesterday when Dr. Miller
6 testified, correct?
7 A. Yes, I was.
8 Q. And you heard him talk about the areas that are very
9 interesting that scientists are looking into an evolutionary
10 theory that are under investigation and that are not all clear.
11 Did you hear him testify to that?
12 A. Yes, I heard him.
13 Q. You don't believe that that's motivated by his religious
14 belief, do you?
15 A. No. I mean --
16 MR. MANELY: Objection, Your Honor. It's another
17 mischaracterization of evidence. There's a question of whether
18 or not you throw the baby out with the bath water, there's a
19 question whether or not evolution is doing --
20 THE COURT: I don't want him to comment on
21 Mr. Miller's religious belief, so I am going to sustain the
22 objection.
23 Q. (By Mr. Gunn) You stated that you believe that everyone
24 who disagrees with your scientific views on evolutionary theory
25 is a religious fanatic, right?
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1 A. I never said "my scientific."
2 Q. What did you say?
3 A. I basically feel that anyone, any scientist, okay, who
4 disagrees with the theory of evolution has a previous agenda
5 that's religious. Someone outside the science realm, they're
6 not familiar with enough science to understand the method, I
7 don't have a problem with them believing anything they want to.
8 I also have a problem with chemists or, you know,
9 engineers coming up and saying, well, it's wrong, they don't
10 know what it's doing. People, too many -- even during this
11 episode I still hear, "I didn't come from no damn monkey."
12 Evolution doesn't say that. If people would just
13 learn it and understand it, they'd start, you know, realizing
14 that it's not something that's destroying their faith.
15 Q. Do you recall your deposition July 8th, 2003?
16 A. Yes, sir.
17 THE COURT: Do you have a copy?
18 THE WITNESS: Not in front of me, sir.
19 THE COURT: Is there another copy?
20 MR. GUNN: I'm going to give him one.
21 THE COURT: You have two, okay.
22 Q. (By Mr. Gunn) Do you recall when I asked you about this
23 issue about your perception of people who disagree with you as
24 far as evolutionary theory?
25 A. I imagine it's the same thing I feel right now.
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1 Q. I'll show you page 39 of your testimony. If you could
2 read --
3 A. What part?
4 Q. -- starting at line 6, about the battle between the
5 scientists and the religious fanatics.
6 (Pause.)
7 Q. (By Mr. Gunn) Through line 22.
8 A. Stop at line 22?
9 Q. Yes, sir.
10 A. Okay, I'm a slow reader so give me time.
11 THE COURT: We will.
12 THE WITNESS: Thank you, sir.
13 (Pause.)
14 THE WITNESS: I said people like myself who have
15 religious faith and know about evolution accept it. So I'm not
16 quite sure what you're asking me.
17 Q. (By Mr. Gunn) I asked you the question: "In your mind
18 can you imagine that there may be people, not scientists, there
19 may be people who are not what you consider religious fanatics
20 who may disagree with your view of the science of evolution?"
21 And you explain: "It's been my experience from
22 people I've encountered before this issue and during this issue
23 that people of faith like myself who know about evolution
24 accept it, so I would have to say no."
25 Right?
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1 A. Yeah.
2 Q. So you cannot imagine that there may be people who would
3 disagree with your view of the science of evolution who are not
4 religious fanatics; is that consistent with your testimony
5 then, is that what you believe today?
6 A. It's basically what I believe today. There was an
7 addendum added to --
8 MR. MANELY: I object to the mischaracterization of
9 the evidence. Under the rule of completeness I request
10 Mr. Gunn read the very next question and response.
11 THE COURT: Go ahead.
12 Q. (By Mr. Gunn) "Can you see how the instruction of
13 evolution could raise concerns to a parent or a student even if
14 they weren't a religious fanatic?"
15 "Yes, with the caveat that they should then opt out
16 of taking that science class. If the kid is taking science
17 that's what he's got to be taught, is science."
18 A. It's just like if you want to study French and some guy
19 comes in and starts teaching you Portuguese, that's
20 inappropriate.
21 Q. Never the twain shall meet, right?
22 A. Not in the classroom. You want to teach something that's
23 appropriate. You know, let me give you an example, okay.
24 Q. Let me ask --
25 A. You're interrupting me. I would like to give the example
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1 because it explains how I feel about things in the context of
2 American society.
3 I'm in the business world. I do computer
4 programming. Okay? And many times in the past I've gone to
5 different cities to work. I've worked in Cincinnati. I was
6 supposed to go to Japan. Okay? I don't speak any Japanese.
7 Okay.
8 Now, for me to maintain my job I was supposed to
9 learn Japanese. Fortunately, I didn't have to because they
10 lost the contract, I didn't go, but they were preparing me to
11 go. So I was getting ready to take Japanese lessons.
12 My job would have depended upon me communicating in
13 Japanese. If they send some guy in there and says I only know
14 Russian, I'm going to team you Russian, it's not going to help
15 me in my course -- in my job to learning Japanese.
16 And that's the problem, I have to be taught what the
17 subject is. I don't want some fabricated, spun concept,
18 wordsmithing to make something else look like science when it
19 isn't. I don't want the science that I'm being taught to be
20 undermined and say it's not valid because it's not a fact.
21 It is a fact. All you have to do is open your mind,
22 think critically, and start evaluating the evidences and the
23 new data that keeps coming in. To say that it's not valid
24 without looking at the data is ridiculous. And I've looked at
25 the other side's stuff, I've heard debates, I've read some of
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1 the stuff. It's not science.
2 Evolution is science. It's a fact, it has happened.
3 This disclaimer is wrong.
4 Q. Excuse me. As I understand your testimony, you cannot
5 imagine people who are not religious fanatics who may disagree
6 with your view of evolution, does that depend on their
7 educational qualifications at all?
8 A. No. I've known some people who have dropped out of high
9 school but are interested in knowing things anyway. Just
10 because they didn't finish schooling didn't mean they're not
11 capable of learning things, and they've gone out and found
12 things out.
13 Q. I guess I'm asking you if you found that there was
14 someone, and I'm sure you've read on the subject, someone that
15 had an advanced degree in the subject of biochemistry, say, or
16 biology, and they had a different view than you do of this
17 subject, would you believe they were a religious fanatic as
18 well?
19 A. That's hypothetical. I haven't encountered anybody like
20 that, I can't answer it.
21 Q. Okay. You understand that the theory of evolution could
22 conflict with some people's religious beliefs, or do you?
23 A. I guess.
24 Q. Okay.
25 A. Doesn't have to, but I guess it could.
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1 Q. Right. Do you know of any other scientific theory that
2 raises these kinds of strong feelings when it's discussed?
3 A. Well, there's still people on this planet that believe in
4 a flat Earth. They're a small group of people so they don't
5 get as much press, but, you know, years ago before people
6 started accepting the fact that the Earth was round, because
7 who could even see it from space, there was a big ballyhoo
8 about that.
9 There's also Christian Scientists don't believe in
10 the germ theory. And I mean, there's been a lot of court cases
11 about that, I'm sure, because they don't want transfusions,
12 they don't want the drugs.
13 The guy that did the Muppets, I forget his name right
14 now, he died of pneumonia because he was a Christian Scientist,
15 he wouldn't receive the penicillin or whatever antibiotics they
16 wanted to give him. That hit the papers. Jim Henson was his
17 name. Okay? I man, yeah, there's all kinds of things that
18 still come up because of this that raise issues, yeah.
19 Q. Did the people who oppose germ theory show up at any of
20 the board meetings at the Cobb County Board of Education that
21 you attended?
22 A. Not that I know of. I can't say yes or no, I was hiding
23 as best as I could at that moment.
24 Q. I'm sorry?
25 A. I was hiding as best as I could, even though people found
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1 me.
2 Q. You were hiding?
3 A. I was hiding, man. That was a mess.
4 Q. Do you think it's reasonable for the school board to
5 promote tolerance of religious belief?
6 A. Say that again.
7 Q. Do you think it's reasonable for the school board to
8 promote tolerance of religious belief?
9 A. Yes.
10 Q. Okay. You don't have any objection to that?
11 A. That, again, falls under what I said about the character
12 curriculum and fostering respect.
13 THE COURT: How can they do this and not want to
14 violate your viewpoint about it?
15 THE WITNESS: Well, basically through teaching
16 respect, by teaching respect. We have comparative religion
17 classes, I found out. I proposed one at one board meeting and
18 nobody told me they already had them, unless they created them
19 after I had made the suggestion. Obviously other people have
20 suggested it.
21 Again, in a historical context, you wouldn't have to
22 teach the religion if you're teaching the basic understanding
23 of the people, the adherents to those religions and make
24 comparisons where one may have come out of another one, how
25 some differ, and it would offer people an understanding of
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1 groups of people that they are not familiar with. And, you
2 know, when people aren't familiar with something, that's when
3 they're suspicious of it and that's when the animosity forms.
4 So the more you can teach the basic tenets of everybody's
5 understanding of what the universe is and teach this respect
6 for it that's not in conflict with yours. There's a lot of
7 roads to Rome; there's not one way to heaven.
8 Q. That's true.
9 A. Okay.
10 Q. Why do you think Ken Miller had to write letters to school
11 boards around the country about the perception that his text
12 might have been anti-religious?
13 MR. MANELY: Objection, speculation.
14 Q. (By Mr. Gunn) Do you have any --
15 THE COURT: I'm going to sustain the objection.
16 Q. (By Mr. Gunn) You object to the sticker because you said
17 that you think it creates some doubt about whether evolution is
18 a theory or a fact, right?
19 A. I object to the sticker because it's religious-based.
20 Q. And how do you know it's religious-based?
21 A. Because in a total book of science, of all the theories in
22 there, it picks on evolution, and historically evolution has
23 been picked on out of everything out there in our modern times
24 by religious groups.
25 Q. Right. So --
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1 THE COURT: And you're saying the controversy
2 surrounding this issue is religious-based and has always been?
3 THE WITNESS: Yes. But it's in the society, it's not
4 in the science class.
5 THE COURT: I understand.
6 THE WITNESS: Yes, sir. Can I say another thing
7 also?
8 Q. (By Mr. Gunn) Sure.
9 A. My child goes to Chabad, which is an Orthodox Jewish
10 synagogue, and the rabbi gave a speech recently at the Cobb
11 commission where he stood up and said the Bible is a guide to
12 live a good life by, everything in it is not a historical
13 document, it's a guide to live your life by. If an Orthodox
14 rabbi can give guidance like that, I don't see why there's got
15 to be a problem between science and history and culture and
16 religion. It's a guide to live life by.
17 Q. But you think essentially that a statement which in some
18 way disparages evolution must be religious in nature, that
19 anything that --
20 A. Evolution in total, yes.
21 Q. Okay, that anything that in some way detracts from
22 evolution or the validity of evolutionary theory must
23 necessarily bolster religious belief, right?
24 A. Historically that's been the case, yes.
25 Q. And you believe that's still true today without exception?
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1 A. Yes.
2 Q. Okay.
3 A. I think it's obvious. A reasonable observer like myself
4 sees it happening around him all the time. I mean, the only
5 negative phone calls I've been getting are from people who are
6 religious and trying to get me to convert. I haven't had an
7 atheist say, look, you know, you're doing the wrong thing, kid,
8 drop this issue because, you know, you're wrong. I just get
9 phone calls saying, you know, come our way.
10 Q. The textbook has a sticker in it and it says the
11 sticker -- it says: "The subject of evolution should be
12 approached with an open mind." Does that tell you that your
13 views are not worthy of inclusion in some way?
14 A. Again, my opposition to that statement is that it's
15 unnecessary. It's offensive to me because it's unnecessary and
16 it just bolsters the top part, which I am absolutely opposed
17 to, which does offend my religious belief.
18 THE COURT: Excuse me, Counselor, is it 12:30 or
19 thereafter?
20 MR. MANELY: Yes, sir, it just is.
21 THE COURT: We are going to recess. We're going to
22 start back at 1:45, okay?
23 Court will be in recess until 1:45. Thank you.
24 (Luncheon recess.)
25 THE COURT: Thank you. Please be seated. We are now
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1 ready to resume.
2 Mr. Gunn, you may continue with your
3 cross-examination.
4 MR. GUNN: Thank you, Your Honor.
5 CROSS-EXAMINATION (continued)
6 BY MR. GUNN:
7 Q. Do you have the sticker in front of you, Mr. Selman?
8 A. Yeah.
9 Q. Okay. The sticker says in part that: "The subject of
10 evolutionary theory should be approached with an open mind,"
11 right?
12 A. Yes, it does.
13 Q. Does that suggest to you that the Cobb County school board
14 is taking a position disparaging evolution or promoting
15 religion?
16 A. You're taking that out of context of the whole statement.
17 Q. Okay. Let's look at the statement in context. This is --
18 you've been here a couple of days and you know this is the text
19 on evolution and the sticker is right here.
20 A. Uh-huh.
21 Q. It includes the statements that -- I guess each sentence
22 you have a problem with.
23 Viewing this statement in context, is it your
24 testimony that the Cobb County Board of Education is
25 disparaging evolutionary theory?
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1 A. Absolutely. A small .22 bullet can kill somebody if shot
2 in the heart.
3 Q. Okay. Because you view evolutionary theory and religious
4 faith as mutually exclusive, right?
5 A. No.
6 Q. No?
7 A. In a science class science should be taught; religion
8 shouldn't come into it. Outside the science class they're not
9 mutually exclusive at all.
10 Q. Okay. Looking at the sticker in context again, is it your
11 position that the Cobb County Board of Education is taking a
12 particular side in the debate between those who would suggest
13 there may be a dispute as to evolutionary theory and those that
14 do not?
15 A. I think it's evident by the fact that they put this
16 sticker in the book that they are taking a side.
17 Q. Okay, even though they adopted --
18 A. They had no choice but to adopt that book. Well, not that
19 particular book, but they had no choice but to put evolution
20 back into the curriculum. They inappropriately removed it
21 before.
22 Q. Well, Mr. Selman, you didn't object when the Cobb County
23 school board had a policy that said that we would respect
24 family teachings and that we would restrict evolution
25 instruction when it conflicted with family teachings, did you?
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1 A. I was sleepwalking through my democracy, sir. I had no
2 idea until I saw the front page of Creative Loafing that any of
3 this was even going on. I made a silly assumption that
4 everything was fine in America.
5 Q. Okay, because your son didn't even have a textbook that
6 had a sticker on it?
7 A. Correct.
8 Q. And so your testimony is that the statement as a whole in
9 the context that it's presented in is exclusive rather than
10 inclusive; is that correct?
11 A. That is correct.
12 Q. Okay. Have you reviewed these chapters on evolution?
13 A. I've seen bits and pieces. Again, my child is not at that
14 level yet and so any books I really encounter are to help him
15 in his studies. So I haven't worked with him on this. Any
16 review I've done of that, I've done independently and just
17 haphazardly. I saw something that caught my eye and I'd read
18 it.
19 Q. So out of this thousand page textbook you're not aware of
20 anything that you object to besides parts of the sticker,
21 right? I mean, there's nothing in here that promotes religion
22 or disparages religion or anything else that you object to
23 from --
24 A. From the things I've seen and, you know, I see nothing
25 that disparages religion in there. In fact, there's an
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1 underlying tone in some ways to ameliorate any problems with
2 religion, so that really makes it unnecessary for that sticker.
3 Q. What respect is the tone --
4 A. If I remember right, and I don't have the book in front of
5 me and if you gave it to me I'd have to take some time to read
6 slowly through it again, but there are statements I remember
7 hearing or reading that said, paraphrasing -- gee, I can't even
8 paraphrase. I just know the sense of what I got while I was
9 reading was that, you know, we're not out here to beat anybody
10 up with anything, that you have to understand this, you don't
11 have to believe it, is the sense I got from it.
12 Q. And you understand from Mr. -- Dr. Miller's testimony that
13 there are some people that don't get that same understanding
14 from it, right?
15 A. Again, when somebody -- and this is my own experience, and
16 this and other issues, just generally how some people work,
17 they don't have to be religious people, they could be Yankee
18 fans versus Boston Red Sox fans, you have your opinion you
19 bring to the table and, you know, no matter what you see in
20 front of you, that's it, you know.
21 Q. Okay. And although from your -- to the best of your
22 knowledge, although there's nothing in this textbook of 1100
23 pages which in any way makes any comment on religious faith one
24 way or the other or suggests a creator, you believe that this
25 content here overwhelms the rest of this content, is that --
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1 A. The analogy I gave you a moment ago is a small .22 bullet
2 in the heart can kill you.
3 Q. I'm asking you, your testimony does --
4 A. It does, it undermines everything that's evolutionary in
5 that book.
6 Q. Okay. Did you -- you're very interested in science?
7 A. Yes, I am.
8 Q. And I assume you played some role in the formation or have
9 joined this group that promotes integrity in science education,
10 right?
11 A. Yes, sir.
12 Q. Did you have an opportunity to review the text when they
13 were put out for public comment by the board of education?
14 A. No. Again, the issue came up after -- my awareness of the
15 issue came up after the adoption of the books.
16 Q. You did attend board meetings at which they were
17 discussing the issues related to the text adoption and the
18 policy and the regulation, right?
19 A. The policy and the regulation, not the adoption of this
20 book. Several other books had come up, I think, for the lower
21 grades that I did go view and make comment on.
22 Q. Oh, okay.
23 A. But that came after this whole thing blew up. That was
24 the next group of books they were adopting, I think for the
25 lower grades.
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1 Q. Not the 2002 text adoption?
2 A. That's correct.
3 Q. Okay. Did you speak at any of these board meetings?
4 A. Oh, yes.
5 Q. Do you recall other speakers?
6 A. Yes.
7 Q. A lot of other speakers?
8 A. Lots of them.
9 Q. Would you say that all those speakers were unified in what
10 they were asking the board to do?
11 A. No.
12 Q. What was the range of views about the text adoption
13 expressed?
14 A. I don't think the term "range" is appropriate. A range
15 indicates that there's this end and then there's a little bit
16 over and a little bit over and a little bit over. This was
17 polarizing, there were two sides and that was it. I didn't see
18 or hear anybody in the middle.
19 Q. Okay. So your point of view was it was those who were for
20 the text adoption without any other issue, and those who were
21 for the text adoption and things like supplementary materials
22 on intelligent design, do you remember that being discussed?
23 A. Well, people wanted to bring it in, yes.
24 Q. Right, and supplementary materials on creationism?
25 A. Uh-huh.
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1 Q. And do you remember Ms. Rogers was asking for electives to
2 be presented on theories of --
3 A. Actually, I asked for the same thing, for comparative
4 religion class in the history context.
5 Q. And you do understand that the previous policy and
6 regulation allows students, some students to opt out of
7 evolution instruction?
8 A. The previous one before what's in place now?
9 Q. Right.
10 A. I'm aware of that, yes.
11 Q. Okay. Did you speak at any of the meetings in which the
12 policy, the Cobb County School District's official policy on
13 how they instruct on evolution, at which that was discussed?
14 A. I remember being at a couple of meetings, one which they
15 were discussing the change in the policy. And then I was at
16 the meeting when they actually voted on the change in the
17 policy with the promise of regulations to come.
18 Q. Okay. Did you speak about what you thought about the
19 policy at the meeting?
20 A. Yes.
21 Q. What did you say?
22 A. If my recollection is correct, I believe I said there
23 seems to be a large loophole in here that you can drive a truck
24 through, I want to wait to make comment on it until I see the
25 regulation that supports the policy.
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1 Q. Okay. And that was the final version that the board of
2 education adopted that's shown -- well, let me show you
3 Defendants' Exhibit 5.
4 A. You keep asking me to read things.
5 Q. I'm sorry.
6 MR. MANELY: Your Honor, if we're off the subject of
7 the textbook I'd ask that we close the exhibits.
8 THE COURT: If you've finished.
9 MR. GUNN: Sure.
10 THE COURT: Thank you.
11 Q. (By Mr. Gunn) Can you identify Defendants' Exhibit 5?
12 A. Okay, yeah, this is the policy that kind of you can drive
13 a truck through it if you found a loophole, which it's obvious
14 it's there because it, you know, doesn't promote it but it
15 doesn't prevent it, either.
16 Q. Okay, pretty obvious that it's not sufficient from your
17 point of view?
18 A. That's correct, sir.
19 Q. Okay. You think that policy is too vague?
20 A. Yes.
21 Q. Do you believe that the policy is inappropriate in any
22 other respect?
23 A. Just in the fact that it doesn't prevent nonscientific
24 information from coming in. It just says we won't promote it,
25 but it doesn't say we won't stop it.
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1 Q. Do you think it's inappropriate that the policy
2 specifically says that the board requires religious neutrality?
3 A. That means you could possibly bring in all sorts of
4 religious concepts into the class, that they would all be
5 treated equally with science.
6 Q. Okay. So you don't -- do you think the policy is, in your
7 view, that it promotes religion or are you unsure?
8 A. I'm sure it doesn't prevent it.
9 Q. Okay. In the past do you remember expressing that that
10 policy was a good policy?
11 A. I remember saying what I said to you a moment ago, that
12 when the policy first came out I wasn't going to pass total
13 judgment on it until I saw the regulation that supported it.
14 Q. But what you just told me was that the policy itself, not
15 that you were waiting on the regulation, but the policy itself
16 had some tremendous loopholes, right?
17 A. Yeah. The loophole that I see there is that it doesn't
18 say you can't; it just says we won't promote it.
19 Q. Do you remember writing a letter to the Cobb County Board
20 of Education a month after the policy was adopted in which you
21 stated the view that the board was correctly moving to keep
22 faith-based beliefs out of science instruction?
23 A. Moving towards it, yeah, moving.
24 Q. So you --
25 A. Haven't gotten there yet.
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1 Q. -- do remember making that statement?
2 A. Yes. They haven't gotten there yet. And if they move the
3 sticker in they're not going to get there.
4 Q. And your letter to the board of education, do you remember
5 that you did not express any concern about the policy; the
6 concern you expressed was about the sticker? Do you recall
7 that?
8 A. I think that's correct. But I was, again, as I made the
9 statement before and I think it's even in the deposition, I
10 said I was waiting on the regulation to show up.
11 Q. You did say that in your deposition. But in your letter
12 to the board you said the board is correctly moving to keep
13 faith-based beliefs out of science instruction and you wrote
14 that based on the policy, correct?
15 A. Yeah. Again, moving. They're not there yet. If I would
16 have said they've attained it, they're great, they're
17 wonderful, we have no problem; but they're moving, they're not
18 there yet.
19 Q. Do you recall, after the policy was adopted, do you recall
20 your attorney stating the opinion that the policy was a 100
21 percent improvement over the previous existing sticker?
22 A. I don't remember that.
23 Q. Okay.
24 A. And, again, that's a relative thing. The hundred percent,
25 you know, if I need five and I've got one and I get a hundred
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1 percent I get two, but I'm still nowhere near five.
2 Q. Well, you do recall we discussed in your deposition that
3 you specifically considered amending your complaint to add the
4 actual instruction in the classroom, that you specifically
5 waited to see how the policy and the regulation were drafted?
6 A. How the regulation would come out, yes.
7 Q. And you never amended your lawsuit to add any additional
8 claims, you added additional plaintiffs but you never added any
9 additional claims about how evolution is actually taught,
10 right?
11 A. That's correct. Do you want me to change it?
12 Q. I'd like you to identify Defendants' Exhibit 6.
13 A. Mr. Gunn, I can't read quick.
14 (Pause.)
15 THE WITNESS: Okay, sorry it took so long.
16 Q. (By Mr. Gunn) That's okay. Can you identify that?
17 A. Yes.
18 Q. What is that?
19 A. It's the -- apparently it's the regulation that supports
20 the policy.
21 Q. And do you understand that the regulation is what actually
22 governs how evolution instruction occurs in the classroom?
23 A. Yes.
24 Q. Okay. Do you have -- do you believe that regulation is
25 unconstitutional?
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1 A. It's not the sticker. It's not unconstitutional from my
2 vision, but it's not the sticker.
3 MR. MANELY: My understanding is the answer to that
4 question is a legal question that will be resolved by this
5 Court.
6 Q. (By Mr. Gunn) Do you believe that that regulation
7 promotes religion?
8 A. No. It closes the door a lot on what the policy was
9 allowing. But, again, the issue --
10 THE COURT: Excuse me. Do you find that regulation
11 to be consistent with the policy?
12 THE WITNESS: I'm sorry?
13 THE COURT: Do you find that regulation to be
14 reflective of the policy?
15 THE WITNESS: Reflective of the policy?
16 THE COURT: Is it consistent with the policy?
17 THE WITNESS: No. And the reason I say no is because
18 it closes the loophole a lot. If it was consistent with the
19 policy it would have allowed the loophole to stay open.
20 Q. (By Mr. Gunn) I understood your testimony to be that you
21 were waiting for the regulation to see how it addressed the
22 issue.
23 A. Uh-huh.
24 Q. And in your view, the regulation itself does not promote
25 religion?
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1 A. That's correct. And, again, once this gets interpreted
2 and how it reacts in the classroom, et cetera, that might open
3 up something later on down the road, something that I'm not
4 particularly looking forward to if I have to pick up the ball
5 again, I don't want to do that. But, again, this is not the
6 sticker. The sticker undermines this.
7 Q. Mr. Selman, when you interpret the sticker, do you
8 consider policy and the regulation and the text which are
9 attached as expressions of Cobb County school board's intent?
10 A. The sticker contradicts the book and contradicts the
11 regulation. The regulation wants to teach science. The
12 sticker undermines science. It says evolutionary science is
13 not a fact.
14 Q. The sticker says that evolution should be approached with
15 an open mind, correct?
16 A. That's not all it says.
17 Q. Correct.
18 A. That's out of context. The sticker in total undermines
19 evolutionary theory, which is a fact.
20 Q. The regulation says science and religion are not mutually
21 exclusive?
22 A. The regulation is not the sticker.
23 Q. That's correct.
24 A. The sticker is what I'm suing about. I'm not suing about
25 the regulation. The sticker undermines science, period. And
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1 in undermining science, the only avenues in our society that
2 have been taken against evolution have been religious. That's
3 not acceptable in a science classroom, in a public science
4 classroom.
5 Q. And you're concerned about what the future might hold,
6 but, in the two and a half years that this suit has been
7 pending, never added a claim based upon any religion being
8 interjected into the science classroom, correct?
9 A. Say that again.
10 Q. You expressed concern that you may have to sue again based
11 on what happens in the classroom, but, in the two and a half
12 years that this case has been pending, you've never amended the
13 complaint to add a claim about what actually happens in the
14 classroom, correct?
15 A. I haven't had personal experience about things and I can't
16 say what I've heard because it's hearsay. But if I can say
17 hearsay, I've heard things have been happening.
18 Q. And as far as amending your complaint, you've not amended
19 your complaint, correct?
20 A. I haven't experienced them, I'm not the one that can sue.
21 Q. Thank you.
22 REDIRECT EXAMINATION
23 BY MR. MANELY:
24 Q. Do you still have the policy and regulation up there?
25 A. Yes, I do, sir.
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1 Q. May I see, first of all, the policy?
2 Thank you. I'm holding Defendants' Exhibit 4 and
3 Defendants' Exhibit 5 and placing Defendants' Exhibit 5 on the
4 inside jacket of the textbook. Is this your understanding of
5 the way the Cobb County school board is addressing evolution,
6 by telling children the policy on the inside cover of their
7 textbook?
8 A. Not at all.
9 Q. Thank you. May I see the regulation? I'm holding
10 Defendants' Exhibit 4, the textbook, and placing Defendants'
11 Exhibit 6 inside the textbook over the sticker. Is it your
12 understanding that the Cobb County school board is telling
13 children what their regulation is by putting it right on the
14 inside cover of their textbook?
15 A. No.
16 Q. Removing now the policy and the regulation, is the Cobb
17 County school board deeming it appropriate to just tell the
18 children what's in the sticker on the inside cover of their
19 science textbooks?
20 A. Yes, absolutely.
21 Q. Thank you. Mr. Gunn was talking to you about your
22 concerns about the Cobb County Board of Commission. Have you
23 talked with the board members about that?
24 A. Several times, sir.
25 Q. And I'm not involved in that particular issue?
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1 A. No, you are not.
2 Q. My understanding is your concern is the Cobb County board
3 members opened their commission meetings, or at least until you
4 raised this issue, consistently have opened their commission
5 meetings strictly with a prayer to Jesus Christ; is that right?
6 A. Many times. More than many times, a predominant amount.
7 Q. And offered no opportunities for imams to speak; is that
8 right?
9 A. Not until I got involved with them.
10 Q. Until you got involved?
11 A. Yeah. I gave them a list of alternative, you know,
12 religious groups that they can contact and it took a long time
13 after that, almost a year, before they used the imam that was
14 on the list I gave them.
15 Q. And no opportunities for Buddhist monks, who don't even
16 have a creator, right?
17 A. That's correct.
18 MR. MANELY: Thank you, nothing further.
19 THE COURT: Thank you.
20 MR. GUNN: Just briefly, Your Honor.
21 RECROSS-EXAMINATION
22 BY MR. GUNN:
23 Q. Mr. Selman, do you consider yourself a reasonable person?
24 A. Yes.
25 Q. Consider yourself to be well informed?
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1 A. Depending upon the topic, yes.
2 Q. Consider yourself well informed about this topic?
3 A. Which topic?
4 Q. The one we're here about today.
5 A. Evolution? Yes.
6 Q. Are you aware that there's a -- you were aware when you
7 walked in here that there was a policy that governed how
8 evolution instruction occurred?
9 A. I'm sorry, I can't hear you.
10 Q. You were aware when you walked in here that there was a
11 policy governing how evolution instruction occurred, right?
12 A. Uh-huh.
13 Q. And you were aware that there was a regulation governing
14 how evolution is taught in the classroom, right?
15 A. Yes.
16 Q. And you've expressed the view here today and in your
17 deposition that there's nothing that promotes religion in the
18 regulation, correct?
19 A. It closes the loophole in the policy considerably, yes.
20 MR. GUNN: Thank you.
21 THE COURT: Anything further, Mr. Manely?
22 MR. MANELY: No, sir.
23 THE COURT: You may step down.
24 Call your next witness, Mr. Manely.
25 MS. GARRETT: Your Honor, we call Carlos Moreno.
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1 THE COURT: Please step up, face me, and raise your
2 right hand.
3 CARLOS S. MORENO,
4 having been first duly sworn, was examined and testified as
5 follows:
6 THE COURT: Thank you. Please be seated. Make
7 yourself comfortable. I want you to speak into the microphone
8 as you testify and please talk loud enough so that we all can
9 hear your testimony. Are you ready?
10 THE WITNESS: Yes, I am.
11 THE COURT: Okay, go ahead, Counselor.
12 DIRECT EXAMINATION
13 BY MS. GARRETT:
14 Q. Would you please state your name for the record?
15 A. It's Carlos S. Moreno.
16 Q. And, Dr. Moreno, can you tell us about your education?
17 A. Well, I have a bachelor's and a master's degree from MIT
18 and Ph.D. in genetics and molecular biology from Emory
19 University.
20 Q. And can you tell me about your employment history?
21 A. Well, after my finishing my master's degree I worked for
22 four years for NASA -- they were actually in aerospace
23 engineering, my first two degrees -- and then after that my
24 sister-in-law got breast cancer. I decided I wanted to do
25 breast cancer research. So I did my Ph.D. in genetics
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1 molecular biology and after I finished my Ph.D. in 1998 I
2 became a post-doctoral fellow at Emory in the Department of
3 Biochemistry. In 2001 I was appointed to the faculty in the
4 Department of Pathology and Laboratory Medicine.
5 Q. That's where you are currently?
6 A. That's where I am now as an assistant professor.
7 Q. As an assistant professor what classes do you teach?
8 A. I teach a seminar course in genetics and also next
9 semester I'll be teaching a course in bioinformatics and
10 computational biology.
11 Q. And as a professor do you do more than teach classes?
12 A. Yeah. Actually, the focus, the majority of my work is
13 actually in research. I do mostly cancer research at the
14 molecular level, prostate cancer and ovarian cancer.
15 Q. How did you hear about the disclaimer that's been placed
16 in the Cobb County textbooks?
17 A. Well, I read about it in the newspaper, about the dispute
18 going on and I was quite upset because I felt that there was
19 another religious attack going on against science education in
20 Georgia and was amazed by this.
21 And I read what the sticker said. I thought it was
22 misleading because I felt that it stated that evolution was not
23 a fact and it was using "theory" in a term such that I believe
24 that high school students are not really quite mature enough to
25 make the distinction between the scientific use of the word
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1 "theory" and the common use of the word "theory." It implied
2 that there was some scientific debate or dispute about the
3 truth of evolution, which there is not, because there is no
4 scientific evidence that disputes the truth of the fact that
5 evolution occurred and that all life is descended from a common
6 ancestor.
7 So I felt that it was misleading and would be a
8 detriment to the education of students in the state of Georgia,
9 or in Cobb County in particular, and so I thought I wanted to
10 do what I could to take a stand about it. So I wrote this
11 petition.
12 Q. And after looking at the text, why did you think that it
13 was a religious attack?
14 A. Well, because the only alternatives and disputes with the
15 theory of evolution are based solely on the premise that there
16 is some supernatural intelligence which is based on religious
17 ideas and is not scientific because there's no way to test it
18 or disprove it, there is no evidence, no scientific evidence.
19 So it is based solely, really, on religious reasons.
20 Q. And you said that this prompted you to do something about
21 it; is that right?
22 A. Yes. I wrote a petition which I circulated amongst the
23 faculty, my colleagues at Emory University, and the response
24 was immediate and overwhelmingly positive, over, well over a
25 hundred signatures within a couple of days, including the
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1 chairman of several departments, including departments of
2 biology and pathology and laboratory medicine and cell biology,
3 human genetics, chemistry, international health. I might be
4 forgetting one.
5 Q. Do you recognize that?
6 A. Yes, I do.
7 Q. And can you tell me what it is?
8 A. This is the petition that I wrote and circulated and sent
9 to the school board in Cobb County.
10 Q. And does the petition support or oppose the disclaimer?
11 A. It strongly opposes the disclaimer.
12 Q. And can you tell me what the petition says about the
13 evidence of evolution?
14 A. Well, it says: "Evolutionary theory has been supported by
15 a myriad of observations, including recent molecular genetic
16 evidence based on the genome sequence of dozens of organisms.
17 All biological evidence supports the concept of descent from a
18 common ancestor and all of biology makes sense only in the
19 framework of evolutionary theory. To suggest to middle and
20 high school students that there is any type of debate within
21 the scientific community on the validity of evolution would be
22 completely untrue and a disservice to those children."
23 Q. And you may have answered this, but what does the petition
24 say about the strength of the theory of evolution as compared
25 to other scientific theories?
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1 A. Well, that evolution is a theory in the same sense that
2 quantum mechanics or the theory of relativity or of gravity is
3 a theory. It is one of the best established theories in all of
4 science. It has more evidence supporting it than many other
5 theories. And to put in a disclaimer on the theory of
6 evolution in a biology textbook is like putting one on gravity
7 in the physics textbook, it's ridiculous.
8 Q. And how many professors signed on to the statements in
9 that petition?
10 A. I believe it was over 120.
11 Q. And were there any professors that you asked to sign who
12 declined because they supported the disclaimer?
13 A. No.
14 CROSS-EXAMINATION
15 BY MR. GUNN:
16 Q. Dr. Moreno, how are you?
17 A. Fine, thank you.
18 Q. You said you read in the paper about this issue and you
19 immediately were aware it was a religious attack?
20 A. Yes.
21 Q. And that was because the only disputes about the theory of
22 evolution are religiously motivated?
23 A. Yes.
24 Q. Are you saying that there are no disputes about any areas
25 of evolutionary theory?
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1 A. There is no dispute about the fact that evolution
2 occurred.
3 Q. Right, the broad theory of evolution is the underpinning
4 of biology, correct?
5 A. Yes.
6 Q. As any other scientific theory, they're a constant process
7 of making hypotheses and checking, and the theory expands and
8 contracts as scientists evaluate it over time, correct?
9 A. Yes.
10 Q. And that process of evaluating the evidence is a
11 scientific inquiry, isn't it?
12 A. Certainly.
13 Q. Okay. Your petition is dated September 9th, 2002?
14 A. Uh-huh.
15 Q. Did you ever have an opportunity to review the school
16 district's policy or regulation on how evolution instruction
17 actually occurs?
18 A. There was a recent flap about the state standards, which I
19 read some about that.
20 Q. But as far as the implementation of the evolution text in
21 Cobb County schools, are you aware of how that progressed after
22 that time when the --
23 A. Well, there was a vote which approved the stickers, as I
24 recall, and then the stickers went into the books.
25 Q. Right, and after that point are you aware of anything that
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1 the board of education did about how they actually taught
2 evolution in the classroom?
3 A. No.
4 Q. And your letter as of September 9th, you said you
5 supported this litigation, September 9th, 2002, right?
6 A. Uh-huh.
7 Q. Are you aware of any of the previous history of issues
8 about teaching evolution in Cobb County schools before the
9 sticker was implemented?
10 A. From what I understand, evolution has had a long history
11 of opposition from religious groups throughout the state.
12 Q. Again, I'm just asking you about Cobb County schools. Do
13 you know any of the particular issues that arose in the Cobb
14 County schools prior to the adoption of these texts?
15 A. No.
16 Q. Let me show you, I believe they're still there, could you
17 review Defendants' Exhibit 6, which is the regulation on
18 teaching evolution, and tell me if you see find anything
19 inappropriate in that language?
20 (Pause.)
21 THE WITNESS: So what was the question?
22 Q. (By Mr. Gunn) I'm sorry, is that appropriate as an
23 expression of how to teach evolution in elementary and high
24 schools?
25 A. Well, I would say that there -- the main issue here is
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1 quality science education and I think that in a science class
2 students should hear all of the scientific evidence.
3 Q. Right.
4 A. Okay, and that instruction that might include something
5 that's not scientific doesn't belong in the science class.
6 Q. Right. Is there something in that regulation that gives
7 you pause in particular?
8 A. Well, what gives me the most pause, I suppose, is where
9 you say that science has its limits and is not intended to
10 explain everything and that scientific theories of origin and
11 religious belief are not necessarily mutually exclusive.
12 I mean, while there is -- you can see -- I can see both
13 ways to looking at this. It, to me, appears not necessarily --
14 it seems to be written to accommodate those who have a problem
15 with science, is what seems to be the intention of this.
16 Q. Okay. It's written for the purpose of accommodating those
17 who may have a conflict with evolutionary theory?
18 A. Yes.
19 Q. Okay. Given that you -- your position has been for two
20 years that this sticker shouldn't be in the textbooks. Have
21 you reviewed the textbooks that the stickers were affixed to?
22 A. No, I haven't looked at them.
23 Q. Okay. If I tell you that this is a representation of Unit
24 15 of the tenth grade biology text by Ken Miller, and tell you
25 that this is, this sticker and the rest is the representation
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1 of Ken Miller's synthesis of what was appropriate for tenth
2 grade biology students, you think the primary thing
3 communicated by the board of education here is science or the
4 possibility of religious belief?
5 A. Well --
6 MS. GARRETT: Your Honor, I object. Lack of personal
7 knowledge, he hasn't read the entire text.
8 THE COURT: Do you want an opportunity to peruse this
9 before you answer that question? I think it's a very important
10 question.
11 THE WITNESS: No.
12 THE COURT: Or do you feel you have enough background
13 in this area to answer that question?
14 THE WITNESS: I feel fine to answer the question.
15 THE COURT: I'm going to let him answer the question.
16 Objection overruled, go ahead.
17 THE WITNESS: My personal view on this is that the
18 disclaimer is just exactly that, a disclaimer. It basically
19 sends the message to the students that you don't really have to
20 buy this, this is not necessarily right, and that's not true.
21 What's in that textbook is correct.
22 Q. (By Mr. Gunn) And so your testimony, then, is that the
23 sticker here is the primary message which predominates over the
24 message of --
25 A. The message in that sticker has been in the newspapers and
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1 in the media --
2 Q. It sure has.
3 A. -- quite a bit and it is strongly in conflict with the
4 actual textbook itself.
5 Q. My question is does this sticker, as a tool for
6 communication, overwhelm the rest of the content?
7 A. It's incompatible, it's inconsistent.
8 Q. Given that it's inconsistent, does it -- is that the
9 primary message that you perceive looking at this display?
10 A. I think you're sending mixed messages to impressionable
11 children.
12 Q. Dr. Moreno, have you taught high school biology?
13 A. No.
14 Q. You're not aware of any particular difficulties in
15 teaching the theory of evolution in high school, then?
16 A. I would say that I have been familiar through discussions
17 with people who teach high school biology.
18 Q. But no personal experience?
19 A. No personal direct firsthand experience.
20 MR. GUNN: Thank you, sir.
21 THE COURT: Anything further on redirect examination?
22 MS. GARRETT: I have nothing further but I just
23 wanted to comment that exhibit, Plaintiffs' Exhibit 73, which
24 we both showed the witness, is going to be entered along with a
25 stipulation of the documents that are going --
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1 MR. GUNN: That's fine.
2 THE COURT: Thank you, let the record so reflect.
3 Thank you, sir, you may be excused.
4 Call your next witness.
5 MR. MANELY: Your Honor, this is subject to opposing
6 counsel, and we need to work this out. We agreed, I think we
7 provided a stipulation to the Court that Ms. Gray could be
8 called out of time. We're concerned about the number of
9 witnesses possible before we close down today and, depending
10 upon what defense would prefer, we can either call -- they can
11 either call Betty Gray out of time at this point or we can
12 proceed forward with our next witness and call her next.
13 THE COURT: Which do you prefer, Mr. Gunn? It's now
14 2:30.
15 MR. GUNN: We did have a stipulation and that was --
16 I've had a lot of board members waiting.
17 MR. MANELY: Would it just be safe to go ahead and
18 call Gray? We're talking about calling Ms. Gray and then we
19 call Ms. Plenge next and our expectation is we finish up there
20 with Ms. Plenge today. It's safest to go ahead and call Betty
21 now and that way she's done and you don't have to deal with it.
22 MR. GUNN: Okay.
23 MR. MANELY: So at this point, Your Honor --
24 THE COURT: Wait, I think she wants to confer.
25 MR. GUNN: We would rather go ahead and do Plenge.
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1 MR. MANELY: Okay.
2 THE COURT: Thank you. Call your next witness.
3 MS. GARRETT: Your Honor, we call Ms. Plenge to the
4 stand, please.
5 MR. MANELY: Your Honor, may I be excused just a
6 moment? I have things going on at the office I have to
7 desperately deal with, just out in the hall.
8 THE COURT: Okay.
9 MR. WEBER: Your Honor may we excuse our plaintiff?
10 THE COURT: Sure, plaintiff may be excused if he
11 wishes. Who is the next witness?
12 MR. GUNN: They've gone to get her.
13 THE COURT: And who is she?
14 MR. GUNN: Dr. Plenge.
15 THE COURT: Last name again?
16 MR. GUNN: Plenge, P-l-e-n-g-e.
17 THE COURT: Do you know where she was?
18 MR. GUNN: She was in the witness room.
19 (Pause in the proceedings.)
20 THE COURT: Please step up, face me, and raise your
21 right hand.
22 TERESA PLENGE,
23 having been first duly sworn, was examined and testified as
24 follows:
25 THE COURT: Thank you, please be seated. Make
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1 yourself comfortable and speak into the microphones as you
2 testify.
3 Your witness, Counselor.
4 CROSS-EXAMINATION
5 BY MS. GARRETT:
6 Q. Would you please state your name for the record?
7 A. Teresa Plenge.
8 Q. And you're currently a member of the Cobb County Board of
9 Education; is that correct?
10 A. Yes, I am.
11 Q. And how long have you been on the board?
12 A. Eight years.
13 Q. You were a member of the board when the school board
14 adopted the new science textbooks; is that correct?
15 A. Yes, ma'am.
16 Q. And you were a member of the board when they adopted the
17 sticker that they placed in the textbooks?
18 A. Yes, ma'am.
19 Q. You voted in favor of approving the textbooks, right?
20 A. Yes, I did.
21 Q. And you also voted in favor of adding the disclaimer into
22 the textbooks?
23 A. There is no disclaimer.
24 Q. Did you vote in favor of putting a sticker into the
25 textbooks?
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1 A. Yes.
2 Q. The vote to insert the sticker was unanimous, correct?
3 A. Yes.
4 Q. The disclaimer that -- I'm sorry, the sticker that you
5 placed in the textbook, that's there so that students will know
6 that there are beliefs other than evolution; is that correct?
7 A. Yes.
8 Q. And it tells students that there are beliefs other than
9 evolution, correct?
10 A. Yes.
11 Q. And are one of those other beliefs creationism?
12 A. It doesn't specify that, no.
13 Q. Do you remember taking your deposition?
14 A. Yes, I do.
15 Q. And do you remember swearing an oath when you took that
16 deposition?
17 A. Yes, I do.
18 Q. And as part of that oath did it say that you were stating
19 the truth?
20 A. Yes.
21 Q. I'll hand you a copy of your deposition.
22 A. Sure.
23 Q. Would you please turn to page 13?
24 A. Sure.
25 Q. Do you recall in your deposition you were asked questions
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1 about discussions --
2 THE COURT: Excuse me one minute. Counselor?
3 MR. GUNN: Your Honor --
4 THE WITNESS: I don't think you're in the right
5 place.
6 Q. (By Ms. Garrett) I'm sorry, can I take this back from
7 you?
8 A. Sure.
9 MR. GUNN: I object to the impeachment on the grounds
10 that the question just asked is not the one that's being asked
11 here in the deposition transcript again.
12 MS. GARRETT: I will refrain.
13 THE COURT: Thank you.
14 Q. (By Ms. Garrett) The board members had discussions about
15 the disclaimer; is that correct?
16 A. About a sticker.
17 Q. About putting a sticker in the textbook; is that correct?
18 A. Yes.
19 Q. And do you recall the discussions?
20 A. I don't recall them specifically, no. I recall that there
21 were discussions but I don't recall any specifics about the
22 discussions.
23 Q. Intelligent design was part of that discussion, was it
24 not?
25 A. It was mentioned, yes.
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1 Q. And in the discussion it was mentioned that intelligent
2 design was an example of another belief, another belief about
3 the --
4 A. Yes, it was.
5 Q. -- theory of origin?
6 A. Yes, it was.
7 Q. And creationism was also discussed as a belief about the
8 theory of origin?
9 A. Yes.
10 Q. As a board member for several years, you've been involved
11 in several textbook adoptions, correct?
12 A. That's correct.
13 Q. To your knowledge, has the -- the board has never placed a
14 disclaimer in any other textbooks, has it?
15 A. Only the science textbooks.
16 Q. And to your knowledge, the board never conditioned
17 approval of any other textbook on the inclusion of a
18 disclaimer; is that correct?
19 A. We didn't put stickers in any other books.
20 Q. Your schools teach about gravity, correct?
21 A. I'm not a science teacher.
22 Q. Are you aware of the curriculum in your school?
23 A. There are quite a few curriculum items in our QCCs and,
24 no, I do not have them committed to memory.
25 Q. Are you aware of whether or not you teach physics in your
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1 school?
2 A. I don't -- I don't teach in the schools.
3 Q. Are you aware of whether or not the school district in
4 their classes teaches their students physics?
5 A. There are physics classes that are taught, yes.
6 Q. Okay. In the schools do they teach about the germ theory
7 of disease?
8 A. I don't know.
9 Q. But you do know that they teach physics?
10 A. I know there are physics classes, yes.
11 Q. And there's no disclaimer in the physics class, is there?
12 A. We don't have any disclaimers in our system.
13 Q. You want students to think critically about physics,
14 correct?
15 A. About a variety of issues, yes.
16 Q. But there is no disclaimer for physics or these other
17 issues?
18 A. We have no disclaimers.
19 Q. You don't think that not having a disclaimer will keep
20 them from thinking critically about these topics, do you?
21 A. What do you mean?
22 Q. Well, you said that you wanted them to think critically
23 about these issues, correct?
24 A. Yes.
25 Q. But there is no disclaimer, as you stated, correct?
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1 A. I don't understand your question.
2 THE COURT: She says there are no disclaimers; she
3 acknowledges sticker, maybe we need to get that resolved.
4 Maybe you want to use the word "sticker" --
5 MS. GARRETT: Okay, I'm sorry.
6 THE COURT: -- so we can move forward.
7 Q. (By Ms. Garrett) You do -- okay. The board's passage of
8 the disclaimer was prompted by citizens' concerns; is that
9 correct?
10 A. We didn't pass a disclaimer.
11 Q. I'm sorry, I'm sorry, I apologize. It's just the term
12 that we have been using all day and yesterday.
13 THE COURT: I understand.
14 Q. (By Ms. Garrett) The board's passage of the sticker was
15 prompted by citizen concerns, was it not?
16 A. Yes, it was.
17 Q. And the parents' concerns were that they wanted an open
18 debate about evolution in the classroom?
19 A. Some parents expressed that as a desire but that was not
20 considered by the board.
21 THE COURT: What was considered by the board?
22 THE WITNESS: What was constitutional. And we asked
23 our attorney to draft a policy and come forth with a way that
24 we could guide the discussion in our classroom and still have
25 students think critically.
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1 Q. (By Ms. Garrett) And some of the parents who complained,
2 however, they did say that they wanted a discussion of
3 alternative theories?
4 A. Some parents wanted things that are not possible within
5 the boundaries of law for a school system to do.
6 Q. But they still wanted that?
7 A. Yes. They expressed that desire, yes.
8 Q. And they expressed the desire to discuss other principles,
9 such as intelligent design?
10 A. Yes, they did.
11 Q. And they expressed a desire to teach other things, such as
12 creationism?
13 A. Yes, they did.
14 Q. The disclaimer serves to make clear that a theory and --
15 THE COURT: Sticker, sticker.
16 Q. (By Ms. Garrett) The sticker makes clear that a theory
17 and a fact are not the same thing, correct?
18 A. That is correct.
19 Q. And it's your understanding that a theory contains
20 information and hypotheses rather than absolutes; is that
21 correct?
22 A. That's correct.
23 Q. And your understanding that that's the same definition for
24 a scientific theory as for other types of theories?
25 A. Yes.
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1 Q. And so you would use the word "theory" the same in a
2 science context as a common context, as another context?
3 A. Yes.
4 Q. The disclaimer is intended to invoke --
5 THE COURT: Sticker.
6 Q. (By Ms. Garrett) The sticker is intended to invoke an
7 academic discussion about different theories of origin,
8 correct?
9 A. Not invoke, no.
10 Q. It's your understanding that in the classroom there will
11 be a discussion about plural theories of origin; is that
12 correct?
13 A. That's not part of the QCCs. A teacher would not
14 introduce it.
15 Q. Even if a teacher did not introduce it, a student could
16 introduce it, correct?
17 A. A student could bring up the idea.
18 Q. Okay. And so a student could bring up the idea and then a
19 discussion could ensue about the plural theories of origin,
20 correct?
21 A. The teachers could be tolerant of that child's expression.
22 But the teacher's responsibility is to get back on task
23 teaching the QCCs that do not include other theories of origin
24 other than evolution.
25 Q. Is it your understanding that -- isn't it your
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1 understanding that they could discuss, the student could bring
2 up and discuss intelligent design?
3 A. A student could bring up the idea, but the teacher
4 controls the discussion in the classroom and it would be the
5 teacher's responsibility to bring the discussion back to the
6 QCCs.
7 Q. It's your understanding that intelligent design is a
8 permissible alternative theory of origin, is it not?
9 A. Permissible by whom?
10 Q. Permissible according to the disclaimer and the policies
11 in the classroom.
12 A. What disclaimer?
13 Q. The sticker, excuse me.
14 A. Say that again.
15 Q. Give me one moment, I'll rephrase it. Is intelligent
16 design an alternate theory to evolution, an alternate
17 scientific theory to evolution?
18 A. In whose opinion?
19 Q. In your opinion.
20 A. In my opinion?
21 Q. In your opinion.
22 A. I'm not a science teacher.
23 Q. Even if you're not a science teacher, what is your opinion
24 on whether or not intelligent design is an alternate scientific
25 theory to evolution?
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1 A. I haven't thoroughly investigated intelligent design so
2 I'm not sure exactly what it says, so I'm not sure exactly if I
3 agree with it.
4 THE COURT: So you're saying you don't have an
5 opinion?
6 THE WITNESS: I don't have an opinion, that's
7 correct.
8 Q. (By Ms. Garrett) Can you turn to page 29? And can you
9 read the question on line 1?
10 A. Yes, it says: "What are the alternate scientific theories
11 of evolution?"
12 And I said: "Intelligent design."
13 And the question was: "What have you studied on
14 intelligent design?"
15 And I said: "I have read about, something about
16 fossil records and primarily the lack of evidence."
17 Q. Okay, thank you. And so in your deposition when asked:
18 "And what are the alternate scientific theories to evolution,"
19 you answered, "Intelligent design;" is that correct?
20 A. Yes, I did. I'm sorry.
21 Q. Intelligent design requires a creator, correct?
22 A. Yes, as far as I've been told.
23 Q. And is that creator a superhuman or supernatural being?
24 A. I don't know.
25 Q. The sticker is designated to promote critical thinking,
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1 correct?
2 A. Critical thinking, yes.
3 Q. And that's its purpose?
4 A. Yes.
5 THE COURT: I'm sorry, what was the question?
6 MS. GARRETT: The sticker is designated to promote
7 critical thinking, and then that's the purpose of the sticker.
8 THE WITNESS: Yes.
9 Q. (By Ms. Garrett) Why are there no stickers in physics or
10 other classes or other topics?
11 A. We did not have any issues come forth regarding theories
12 taught in those classes.
13 Q. And do you not want critical thinking in physics?
14 A. Yes, we do.
15 Q. It's your understanding that in the science classroom
16 students have a right to discuss multiple theories of origin?
17 A. Say that again.
18 Q. Is it your understanding that in the science classroom
19 students have a right to discuss multiple theories of origin?
20 A. The teacher guides the discussion but the students have
21 the right to suggest that there are alternate theories of
22 origin.
23 Q. So they do have the right to have those discussions in the
24 science classroom?
25 A. To bring it up. But, again, it's the teacher's
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1 responsibility to bring it back to the QCCs, to treat that idea
2 with respect and tolerance and to bring the discussion back to
3 the QCCs.
4 Q. So they have a right to bring it up but they don't
5 necessarily have a right to discuss it; is that what you're
6 saying? I'm trying to understand the difference between
7 bringing it up and discussing it.
8 A. Well, there is a fine line there, I would agree. But you
9 know, to bring it up they would have -- they would most likely,
10 you know, make some comments to describe their ideas and the
11 teacher should treat it with respect and get back to teaching
12 the QCCs.
13 Q. But it's their right to express their opinions on
14 intelligent design in the classroom?
15 A. Yes.
16 Q. And that's consistent with the disclaimer and with the
17 policy, correct?
18 A. With the sticker and with the policy.
19 Q. If a student does bring up creationism in class, what does
20 it mean to tolerate, or what would the teacher do if a student
21 brings it up? Can you just tell me about that again?
22 A. To treat the ideas with respect and to say that that's
23 really good thinking but we need to get back to the subject in
24 the book, and the subject in the book is evolution.
25 Q. The board considered alternative language for the
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1 disclaimer; is that correct?
2 A. No, the board did not. The board did not write the
3 sticker.
4 Q. They approved the sticker, did they not?
5 A. Yes.
6 Q. And so in approving the sticker, they approved the
7 language, correct?
8 A. That was presented by our attorney, yes.
9 Q. And they considered alternative language for that --
10 A. No.
11 Q. -- sticker?
12 A. No. The board did not write the sticker.
13 MS. GARRETT: Can I have a copy of that Plaintiffs'
14 Exhibit 2?
15 Q. (By Ms. Garrett) Can you look at this document, please?
16 A. Okay.
17 Q. Can you tell me what that is?
18 A. That is an information insert to a board agenda item.
19 Q. And can you tell me what it says on the first page?
20 A. It says: "The following statement will be placed in
21 science textbooks that deal with the theories of origin of the
22 human species." Do you want me to read on?
23 Q. Does it say on the first page that the school board
24 rejected that language?
25 A. No.
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1 Q. Second page, can you turn to the second page?
2 A. It says that it was rejected by the school board on June
3 the 12th.
4 THE COURT: When was the sticker adopted, what date?
5 MR. MANELY: March 28th of --
6 THE COURT: Wait, she's the school board member.
7 THE WITNESS: I don't remember.
8 THE COURT: Was this subsequent to the adoption of
9 the sticker or did it occur on the same day?
10 THE WITNESS: I had completely forgotten all about
11 this.
12 THE COURT: Okay.
13 THE WITNESS: I had completely forgotten all about
14 this.
15 THE COURT: You don't recall this rejection, do you?
16 THE WITNESS: No, I don't. It obviously happened, I
17 just don't recall it.
18 THE COURT: Okay.
19 Q. (By Ms. Garrett) The language in that sticker, if you
20 would like to look it over, I'll let you look it over first.
21 A. Okay, wait a minute.
22 (Pause in the proceedings.)
23 THE WITNESS: Okay, I've read it.
24 Q. (By Ms. Garrett) The language in that sticker would have
25 asked students to think critically about all topics; is that
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1 correct?
2 A. Yes.
3 Q. And the language in that sticker would have stated that
4 the majority of scientists accept evolution; is that correct?
5 A. Yes.
6 Q. Going back to the boundaries for teachers in their
7 classrooms, isn't it your understanding that there should be an
8 open discussion about alternate theories of origin?
9 A. My opinion?
10 Q. Yes. In the classroom, isn't it your opinion that that is
11 what should happen in the Cobb County school?
12 A. The students should be allowed to present their views.
13 Q. Would you say that there should be an open academic
14 discussion about these things?
15 A. The views should be tolerated and should be treated with
16 respect.
17 Q. But wouldn't you agree that there should actually be an
18 open academic discussion?
19 MR. GUNN: Your Honor --
20 MS. GARRETT: I'm sorry.
21 MR. GUNN: I think it's been answered several times
22 by the witness.
23 MS. GARRETT: May I just ask her to look at one part
24 of her deposition?
25 THE COURT: Okay, sure.
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1 MS. GARRETT: Thank you.
2 Q. (By Ms. Garrett) Can you turn to page 21? On page 5
3 there's a question and --
4 A. Page 5?
5 Q. I'm sorry, line 5: "What did you base your vote in favor
6 of placing the stickers in the textbooks on if not an
7 understanding of evolution except for those which you gained
8 which have disclosed to us at this point?"
9 And then you asked him to repeat it and then they
10 repeated it. "What did you base your vote in favor of placing
11 textbooks -- of the stickers in the textbooks on if not an
12 understanding of evolution except for that which you gained
13 which you have disclosed to us at this point?"
14 And your answer is: "Again, it was for clarification
15 of boundaries for teachers and for students to understand they
16 had rights to an open academic discussion and a clarification
17 of the word 'theory,' that theory and fact are not the same."
18 A. Well, I was talking about the word "theory" and the
19 difference between the word "theory" and "fact," that there
20 should be an open discussion between what theory is and what
21 fact is.
22 And the question was extremely confusing, so
23 confusing that the person, Mr. Manely, who answered the
24 question couldn't even repeat his own question, the recorder,
25 the court reporter had to read it back again.
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1 And my answer was directly related to the word
2 "theory" and the word "fact" and discussion of those two
3 concepts, that there is a difference in the word "theory" and a
4 difference in the meaning of the word "fact" and there's a
5 difference in people using "theory" in one form of casual
6 language, and then "scientific theory," which has a different
7 meaning, and that there should be an open discussion about
8 those. So that's what that was all about.
9 Q. When the board was discussing the sticker, was the general
10 idea pretty much what the sticker says, that there are other
11 beliefs?
12 MR. GUNN: Your Honor, I object, mischaracterizes
13 what the sticker says.
14 THE COURT: I think it does. I'm going to sustain
15 the objection.
16 THE WITNESS: Would you repeat the question?
17 THE COURT: Objection sustained.
18 THE WITNESS: Okay.
19 Q. (By Ms. Garrett) Is it your belief that the sticker says
20 that there are other beliefs? Excuse me, I...
21 (Discussion off the record at counsel table.)
22 THE COURT: That's it?
23 MR. WEBER: Nothing further.
24 THE COURT: Thank you.
25 Mr. Gunn?
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1 MR. GUNN: No questions, Your Honor.
2 THE COURT: Thank you, you may be excused.
3 THE WITNESS: Thank you.
4 THE COURT: We're going to take a 15-minute break.
5 Court will be in recess for 15 minutes.
6 (Recess.)
7 THE COURT: Thank you, please be seated.
8 Call your next witness.
9 MR. GUNN: Your Honor, the defense calls Betty Gray.
10 THE COURT: Thank you. Please come forward. Please
11 step up, face me, and raise your right hand.
12 BETTY GRAY,
13 having been first duly sworn, was examined and testified as
14 follows:
15 THE COURT: Please be seated. Make yourself
16 comfortable and let us know when you're ready.
17 THE WITNESS: Pardon?
18 THE COURT: Let us know when you're ready.
19 THE WITNESS: I'm ready.
20 THE COURT: All right. Your witness.
21 MR. GUNN: Thank you, Your Honor.
22 DIRECT EXAMINATION
23 BY MR. GUNN:
24 Q. Ms. Gray, could you tell the Court how long you've served
25 on the Cobb County school board?
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1 A. I came to the Cobb County school board in 1993 and am
2 currently finishing the 12th year and have just recently been
3 reelected for another term.
4 Q. How were you employed prior to your board service?
5 A. I've been in education 50-plus years in one capacity or
6 other. I have been a teacher, a counselor. I've been an
7 administrator. So I've served in all those capacities in Cobb
8 County.
9 Q. Do you have any experience as a teacher dealing with
10 evolution?
11 A. Well, I don't know that I have any dealing with evolution
12 but I guess every -- I certainly have supervised teachers in
13 instruction in the high school at the high school level and the
14 elementary level as a building principal. So indirectly you
15 supervise all the curriculum program.
16 Q. When do you recall the issues that we're here about today
17 first arising? How did it come up?
18 A. I think it was in '02 when we began to make choices, when
19 the staff began to review science books, and as they began to
20 review them and the content and so on, then questions, I think,
21 began to arise.
22 Q. Okay.
23 A. And I believe that was in the spring of '02.
24 Q. Okay. And to back up a little bit, you said as a building
25 principal you had supervised teachers --
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1 A. Yes.
2 Q. -- dealing with evolution curriculum?
3 A. I think an evolution curriculum would be an exaggeration.
4 Science teachers who teach the whole range. And that's what, I
5 guess that was the transition I had to make from a principal to
6 a board member, is that this is a big picture and it's a total
7 package deal. It's more than just an issue of evolution or so
8 and so, and that -- that's difficult because you have to have
9 that broad base at the board level, I think, rather than
10 individual of it.
11 As a supervisor I've also wanted my teachers to feel
12 comfortable teaching whatever the curriculum is called from and
13 from the state level. So in that sense, yes, you supervise
14 whatever is taught in the science curriculum.
15 Q. Did you ever have anyone express concerns about teaching
16 evolution to you as a building --
17 A. I think, obviously, people have very strong feelings about
18 a lot of things, and whenever they do, they obviously want to
19 talk about things and it's really important, I think, for
20 teachers to feel that they can talk. And I think because
21 teachers are teaching kids, you surely want them to feel that
22 their knowledge base can be illustrated in the classroom and
23 they can talk about anything.
24 And they need a sense of well-being as to what they
25 can teach and what their school board is going to let them
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1 teach or what the state level is going to require them to teach
2 or what their kids are going to need to know on the SAT. And
3 so that's the kind of thing I try not to ever forget at the
4 board level or as an administrator supervising teachers. I
5 want teachers to feel good about teaching, whatever it is they
6 teach, if it's evolution or if it's subject verb agreement.
7 They need to have a comfort zone that allows them to teach and
8 deal with children.
9 Q. Okay. Back to the issues that we're here about, had you,
10 in your experience as a board member prior to this 2001-2002
11 textbook adoption, dealt with any of the issues that the school
12 district had faced regarding how you teach evolution?
13 A. With every adoption -- this was the second adoption --
14 there's always a discussion about what the contents and how do
15 you do this, how do you teach this, or how do you teach that.
16 And at different times in the past we would talk about, just in
17 general sessions, not only as a board member but in sessions
18 with science teachers and so on, how important it is that you
19 keep a perspective, when you buy a piece of material, when you
20 buy a textbook to be sure that the coverage in the textbook is
21 balanced on whatever it is, and I guess that's the approach I'd
22 say that, yes, we talked about a balanced science program.
23 Because, unfortunately, our kids haven't always done really
24 well in science, so it's been uppermost in our mind as a board
25 member and as teachers to let's do better with our science
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1 teaching.
2 Q. This particular textbook adoption, is it fair to say there
3 was some community input on how it was going to go?
4 A. We have -- as a school board member you have community
5 input on anything and everything, so you get a lot of input.
6 And, obviously, you have a lot of discussion and we have an
7 open period of time when parents can come in and view
8 textbooks, when the general public can come in.
9 So as they come in and review books, then obviously
10 the content of the books begin to be talked about and it
11 depends on what perspective you have as to what your interest
12 is and what they begin to talk about. But you want to be sure
13 that as a school board member you are always in contact with
14 your community and they will always express how they feel about
15 anything.
16 Q. Okay. What was expressed with regard to the textbooks in
17 this case?
18 A. One of the things is that there was an anxiety level about
19 what you ought to teach about evolution, because on the other
20 side of the continuum there were groups of people that had
21 very, very strong religious views of the situation and they
22 certainly didn't want evolution in a classroom to punish their
23 children or to in any way infringe on how their kids felt about
24 things.
25 So you needed a sort of balance. And when I talked
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1 about that a minute ago, the balance in the textbook, you need
2 some sort of balance that allows any youngster in a classroom
3 to learn about evolution, at the same time with not so much
4 dynamic dogma that they don't know how to deal with it or
5 they're intimidated with their own views of what their views
6 are in the mix of things.
7 Q. When did you first become aware that the administration
8 was looking at the 1995 policy and regulation on teaching of --
9 A. I think probably I became aware of it, but it's because,
10 you know, I'm, you can't forget being an educator, I think they
11 became very involved with the process as we got into adopting
12 the science textbook. So they began to look at content and so
13 on and look at the publishers and what was on the market.
14 And so at that point you begin to realize that -- and
15 you're very careful to know what you're looking at and to look
16 at it and so on. And at that point we began to decide that it
17 certainly was time that our policy and our regulations became
18 updated, I guess, to deal with what the diversity we have in
19 our kids and in our communities now.
20 Q. Okay. And did you approve the idea of changing the
21 previous policy and regulation?
22 A. Yes. I voted for that and I voted for the sticker.
23 Q. Why did you vote for the sticker?
24 A. Pardon?
25 Q. Why did you vote for the sticker?
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1 A. I voted for the sticker because -- I thought about it a
2 long time. I think it was an effort, in my mind, as I prepared
3 to vote for it, it was an effort to do exactly what I said
4 earlier. It would allow some clarification for the teacher, if
5 she needed it; it would reassure the public, if they needed
6 reassuring, that there was some effort made to take care of a
7 classroom situation that could be as diverse or as inclusive as
8 we would like for it to be when we're teaching science or when
9 we're teaching anything else.
10 Q. So were you intending, then, to allow religious beliefs in
11 the science classroom?
12 A. Religious or nonreligious didn't have anything to do with
13 whether I used the sticker or whether I supported the sticker
14 or not or whether I supported the -- it was a way to teach a
15 topic that was going to be in a science book. It was not -- it
16 was neither religious nor nonreligious in my mind.
17 Q. Okay. Was it your intent that there be some kinds of
18 alternative theories, like intelligent design or --
19 A. I think instead of phrasing it in that context, I would
20 hope that a science classroom would be challenging for
21 youngsters to learn. And if they learn, certainly there will
22 be differences of opinion as you challenge youngsters and that
23 the confines of a classroom ought to be safe enough for a
24 youngster to express themselves, whatever their views are.
25 Q. Did you vote for the policy and the regulation?
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1 A. I voted for the policy and regulation on that same basis,
2 so that I would hope that the Cobb County youngster in a
3 science class would be a adept at being challenged by the
4 curriculum, and the curriculum certainly included evolution,
5 and be safe enough to express any kind of opinion they chose to
6 express.
7 MR. GUNN: Thank you.
8 THE COURT: Thank you.
9 Mr. Manely?
10 MR. MANELY: Thank you, sir.
11 CROSS-EXAMINATION
12 BY MR. MANELY:
13 Q. Ms. Gray, did I hear you correctly that you used to be a
14 principal?
15 A. Yes.
16 Q. Where at?
17 A. Pardon?
18 Q. Where at?
19 A. I had several assignments in Cobb County, all my
20 assignments for principalship. I started at Sedalia Park
21 Elementary and at Clarkdale Elementary and retired from Compton
22 Elementary in Powder Springs.
23 Q. I'll tell you the reason why I asked. I'm a product of
24 the Cobb County public education system, I went to Wills,
25 graduated from Wills.
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1 A. See, I remember when Wills was built.
2 Q. When it was built, no, ma'am, I don't remember that. I
3 remember when we got taken over by Campbell.
4 A. I remember that, too.
5 Q. Do I understand correctly, did I hear correctly you took
6 your position on the board in 1993?
7 A. 1993. I ran in the election of 1992, that's correct.
8 Q. Now, we're talking about the textbook adoption here and I
9 don't know if you recall particularly or not whether this was
10 one of the textbooks adopted?
11 A. I certainly do. I've reviewed the textbook.
12 Q. Okay, terrific. I understand that you all considered the
13 textbooks through, or your committee did, consider the
14 textbooks through sometime fall '01 into early '02?
15 A. That would be right.
16 Q. And it might have been February, might have been March,
17 thereabouts, that they proposed the textbooks to the board; is
18 that right?
19 A. Correct. I think those dates are right.
20 Q. The reason there was some hesitation is this lady takes
21 down words. We all tend to nod but she does a whole lot better
22 with yeses and nos.
23 A. I believe it was March, you might want to verify that.
24 Q. I don't want it to be a memory test. Let me hand you
25 what's been marked Plaintiffs' Exhibit 4. Inside the jacket is
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1 the sticker; is that right?
2 A. That's right.
3 Q. And at the bottom of the sticker it says: "Approved, Cobb
4 County Board of Education, Thursday, March 28, 2002."
5 A. That's a night meeting, yes.
6 MR. GUNN: Michael, it's Defendants' 4.
7 MR. MANELY: Thank you, Defendants' 4.
8 Q. (By Mr. Manely) Okay, so we're all in perspective, so the
9 committee proposed the texts, the board considered the texts
10 and adopted the texts sometime in March '02; is that right?
11 A. That's correct.
12 Q. Now, these texts didn't rush out into classrooms then, did
13 they? They were actually for use in the coming school year
14 that began in August?
15 A. Exactly.
16 Q. You all still had to order them and all that?
17 A. That's right.
18 Q. You also had to produce the stickers?
19 A. Yes.
20 Q. Okay. And you all had to get the stickers to the schools,
21 right?
22 A. Yes.
23 Q. And the schools, I believe, took some time during the
24 summer to go ahead and put those stickers in; is that right?
25 A. Yes.
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1 Q. Do I understand correctly that the administration
2 recommended the textbooks without those stickers in them?
3 A. Yes. At first when -- yes, when we first started talking
4 about them.
5 Q. And that the stickers were a board-initiated idea?
6 A. Yes.
7 Q. And do I understand correctly that the adoption of the
8 textbooks was conditioned upon putting the stickers in the
9 textbooks?
10 A. Yes. This was just one of the science books. Now, this
11 was a science adoption, so you remember that we had a lot of
12 books. So we're just talking about the biology book, yes, the
13 biology book, the one I'm holding in my hand, that's absolutely
14 correct but there were a lot of science books so that's why it
15 takes a while for things to move through.
16 Q. Okay. If I understood what was happening correctly, you
17 all considered some 14 science books; is that right?
18 A. I don't have those notes before me. A lot of them. I
19 mean, you know, we're very interested in making sure we have a
20 broad review of all the content material available.
21 Q. Okay. And is it true that you -- that the board, I don't
22 mean you personally, but that the board decided that the
23 stickers should be placed in all of the textbooks but one?
24 A. Here again, you'll have to check. I'm not sure which
25 schools had those or not, yes.
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1 Q. Okay, I apologize, hold on one second. Is it true that as
2 best you recall the board wanted the stickers placed in all of
3 the science textbooks that it approved except for one?
4 A. I'm just not going to give you a definitive answer on
5 that. I simply don't have that recall right now.
6 Q. Okay, I appreciate that. Let me hand you this document
7 and ask you to take a second to look that over and see if it
8 helps refresh your recollection.
9 A. Yes.
10 Q. Okay. Now that you've had the opportunity to -- let me
11 retrieve the document if I may. Now that you've had the
12 opportunity to refresh your recollection, does that help you
13 remember --
14 A. Yes.
15 Q. -- it was about 13 books that you all put stickers in?
16 Okay.
17 Now, I understand that you voted on the sticker
18 because you wanted to kind of safeguard the kids' feelings; is
19 that right?
20 A. I think that would be accurate, yes. Safeguard, I guess
21 that word, I'd live with that.
22 Q. You knew from the response from the community that there
23 was a fair bit of resentment about the idea of teaching
24 evolution; is that right?
25 A. I'd say that's a fair statement, fair, yeah, fair amount.
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1 Q. Okay, and you wanted to make sure that the kids didn't
2 feel that, that had a creationist or intelligent design or
3 other particular religious beliefs that they felt were in
4 conflict with evolution, you wanted to protect them; is that
5 right?
6 A. I think that would be, probably, yeah.
7 Q. And so that was the reason why you voted for the sticker
8 that is now in the textbooks?
9 A. I don't know that I gave it any thought for particular.
10 You phrased some particular things they might bring up. I
11 don't know that in my mind I did a list of things they might
12 bring up, but certainly an openness to bring up what they would
13 need to. I don't want you putting words in my mouth that, you
14 know -- I think anything that they felt that was part of the
15 science curriculum, it would be a safe environment or climate
16 for them to discuss.
17 Q. Okay. Do you remember that the administration came up
18 with its own sticker and presented that to the board?
19 A. I remember that there was a great deal of activity, and
20 administration is always responsible for actions, so I remember
21 there was a great deal of activity. There might have been
22 several, as they tended to create what they really thought the
23 board wanted said. So I guess I would have no idea how many
24 they tried before they finally presented one.
25 Q. Okay. Let me hand you now what's been admitted as
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1 Plaintiffs' Exhibit 2 and I understand -- well, see if it
2 refreshes your recollection that the board in fact suggested
3 different language for the sticker.
4 A. They made --
5 Q. Excuse me, Mr. Gunn pointed out I asked the question
6 wrong. That the administration suggested different language
7 for the sticker.
8 A. Yes.
9 THE COURT: Was this --
10 THE WITNESS: I'm sorry?
11 THE COURT: -- suggestion subsequent to the adoption
12 of the sticker or prior to the adoption of the sticker?
13 THE WITNESS: It was prior to the adoption of the
14 sticker.
15 Q. (By Mr. Manely) And you all did not -- adopt may be the
16 wrong word. You all did not approve of the administration's
17 language that you're looking at there in Plaintiffs' --
18 A. The first phase of -- all of it was administration. All
19 of the material, the sticker that appears in this biology book
20 that you handed me is the administration's final
21 recommendation.
22 Q. In reading over Plaintiffs' 2, ma'am, wouldn't you agree
23 with me that that would help ameliorate children's concerns, if
24 they had religious opinions that they felt were in conflict
25 with evolution? Doesn't that look toward taking care of that?
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1 A. I remind you, again, that I'm only a member of the board
2 of education and there are seven of us. And in discussions
3 there are frequent differences and so on that arise, and so the
4 final effort incorporated, I guess on the basis of -- and I
5 don't want to put words in administration's mouth. I think
6 administration listened attentively to seven board members and
7 then restructured anything that they thought they needed to do.
8 Q. Yes, ma'am. My question was in looking over the
9 language --
10 A. I don't -- I sort of think that's kind of -- I mean,
11 that's kind of anticlimactic because that wasn't the one --
12 obviously this didn't meet the needs of the board and that's
13 why --
14 Q. There you go, that's why I'm asking you. It didn't meet
15 the needs of the board, did it?
16 A. I guess, I don't know. Certainly they went back to the
17 superintendent, or it went back to the superintendent and his
18 staff to look at it again. He heard whatever discussions that
19 were held in the board meeting.
20 Q. Okay. So if I understand correctly, Plaintiffs' Exhibit 2
21 did not meet what the board wanted to accomplish with the
22 sticker?
23 A. Yeah, he wouldn't let them come back with a different one
24 if he hadn't, uh-huh.
25 Q. And, again, ma'am, I don't mean for this to be a memory
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1 test so let me hand you Plaintiffs' Exhibit 1.
2 A. That's great, at this age, you know, with this white hair
3 you wonder here, so let's check it out.
4 Q. Plaintiffs' Exhibit 1 I understand to be the actual
5 language that is in each --
6 A. Exactly.
7 Q. -- high school science textbook that pertains to
8 evolution; is that right?
9 A. That's it, uh-huh.
10 Q. Okay, and that is, the language of that sticker is what
11 the board wanted to accomplish; is that correct?
12 A. It is what the board agreed on to having inserted in the
13 books, yes.
14 Q. And it accomplishes what the board wanted to do; is that
15 right?
16 A. Obviously it did.
17 Q. Certainly better than the one you just looked at,
18 Plaintiffs' 2?
19 A. There was a seven-oh vote that indicated it was, yes.
20 Q. Now, this sticker says: "Evolution is a theory, not a
21 fact," does it not?
22 A. That's what it says, uh-huh.
23 Q. And would you regard that as an assertion?
24 A. Well, it is a statement and that's, as it is stated, not a
25 fact, then it goes ahead to clarify that this is something that
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1 should be approached with an open mind and studied carefully
2 and considered carefully, critically. So I think it's a
3 clarification of what -- of the meaning of the words.
4 Q. Well, ma'am, now where it says "not a fact," it seems like
5 an either/or kind of statement. It either is a fact or it's
6 not a fact, right?
7 A. Well, I think that's probably why the statement continues
8 by saying: "This material should be approached with an open
9 mind," and a science class would help you conclude as to
10 whether or not, remembering that a theory has a hypothesis and
11 the proving of a hypothesis is part of a science curriculum,
12 so --
13 Q. Okay, let's talk about open mind for just a moment.
14 Again, it says "not a fact," right?
15 A. Yes.
16 Q. It doesn't say "may be a fact"?
17 A. No. It says "not a fact."
18 Q. So the board is not expressing an open mind that it might
19 be a fact, is it?
20 A. Well, it may not be an open mind but it certainly
21 clarifies -- in order to avoid that closed approach, it
22 indicates that there's some things that you ought to do, that
23 you ought to approach it with an open mind and you ought to do
24 it, study it carefully and critically.
25 Q. Okay, so to avoid the board's close-minded approach about
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1 evolution being a fact, what the students need to do then is
2 say, okay, the board is saying it's not a fact, but I need to
3 look at the board's statement and evaluate this with an open
4 mind because the board could be wrong?
5 MR. GUNN: Your Honor, calls for speculation.
6 THE COURT: I don't want you to speculate, ma'am, I
7 don't want you to speculate.
8 THE WITNESS: Pardon?
9 THE COURT: Don't answer the question.
10 THE WITNESS: Okay.
11 Q. (By Mr. Manely) Do you believe that evolution is a fact?
12 A. I think my personal beliefs are mine, and that over the
13 years if you're a person of faith and so on, you work out your
14 own details. And that probably is the sort of thing that you
15 have to -- that are a part of your, I guess your cognitive and
16 your emotional health as you begin to make decisions. But you
17 have to remember that as a board member you're making decisions
18 for a lot of people that have very different -- that there's a
19 great deal of diversity.
20 THE COURT: Are you saying your personal views played
21 no role in your decision to support this sticker?
22 THE WITNESS: I'm sorry?
23 THE COURT: Are you saying your personal views on
24 this issue played no role in your decision to support this
25 sticker?
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1 THE WITNESS: I think that would probably be an
2 exaggeration. I tried as nearly as possible to keep my
3 personal views out of it and make it broad enough so that
4 any -- that we could handle any -- that a teacher could handle
5 any situation.
6 Q. (By Mr. Manely) Yes, ma'am, so do you believe that
7 evolution is a fact?
8 A. I've worked out in my own mind how I feel about it and it
9 relates to my personal belief system and my personal belief
10 system is faith-based. Does that answer your question?
11 Q. I think it does but I'd like --
12 A. I don't know how to phrase it any other way than that.
13 Q. Let me phrase it for you and you tell me if I'm right or
14 wrong.
15 THE COURT: Is it in conflict, evolution is in
16 conflict with your faith-based position?
17 THE WITNESS: I have worked through a relationship
18 with evolution and with my faith-based and I think that's as
19 much -- that's who I am. That's all I can say. There's no
20 need to manufacture an answer that will sound any different.
21 Q. (By Mr. Manely) Well, yes or no are wonderful words
22 and they --
23 A. And I'm probably going to say yes and no because I think
24 that's the way you deal with it. You're going -- you know, do
25 I believe that plants have changed over the years and that
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1 animal life has changed and so on over the years? But do I
2 believe that in a personal belief system there's a creation
3 story that works for some people and doesn't for others? And I
4 believe that, too. So, see, it's very hard when you get down
5 to -- and that's what -- I guess that's the very heart of why I
6 tried very hard to make a broad-based decision. It's not how
7 Betty Gray feels about something; it's how the board member, a
8 community ought to experience science in a classroom. And I
9 don't know how to answer it any other way.
10 Q. Okay. The sticker says: "Evolution is a theory, not a
11 fact," correct?
12 A. We've agreed on that, yes.
13 Q. And you voted for it?
14 A. And I voted for it.
15 Q. Thank you, nothing further.
16 REDIRECT EXAMINATION
17 BY MR. GUNN:
18 Q. Real briefly, Ms. Gray, I'm going to show you what Mr.
19 Manely showed you earlier, Plaintiffs' Exhibit 2. What is the
20 date on that board agenda item?
21 A. I'm sorry, what?
22 Q. What's the date on the board agenda item?
23 A. June 27, three months -- this one is March 28th, this is a
24 reconsideration.
25 Q. Okay. So does that refresh your recollection about the
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1 timing of events?
2 A. That puts it in context, that's right.
3 Q. So the version that the board was first presented and
4 adopted was in March --
5 A. 28th.
6 Q. And then the administration came forward with a version --
7 A. And we used --
8 Q. You stuck with the original one?
9 A. Stuck with, you're correct. Sorry.
10 MR. GUNN: Thank you.
11 THE COURT: Thank you. You may step down.
12 THE WITNESS: Thank you.
13 THE COURT: Call your next witness.
14 MR. MANELY: Your Honor, our next witness was going
15 to be Mr. Johnston but we were thinking that these witnesses
16 were going to take longer than they did and Mr. Johnston has
17 been sent home.
18 THE COURT: Thank you. We'll go ahead and recess at
19 this time. We'll start back tomorrow morning at 9:30. Good
20 day and thank you.
21 (Proceedings adjourned at 3:45 p.m.)
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1 C E R T I F I C A T E
2
3 UNITED STATES DISTRICT COURT:
4 NORTHERN DISTRICT OF GEORGIA:
5
6 I hereby certify that the foregoing pages, 1 through
7 409, are a true and correct copy of the proceedings in the case
8 aforesaid.
9 This the 4th day of February, 2005.
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14 Amanda Lohnaas, CCR-B-580, RMR, CRR
Official Court Reporter
15 United States District Court
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