Testimony of Dennis R. Glasgow - Page 2
MR. CHILDS: I anticipate it will take considerably beyond five o'clock.
THE COURT: Well, at the rate the government pays me, I just have to work longer than this.
CROSS EXAMINATION
BY MR. CHILDS:
Q: Mr. Glasgow, have you had an opportunity to read through your deposition?
A: Yes, I have.
Q: Are there any changes that you want to make in that deposition, or have you made any changes in your deposition?
A: Any substantial changes. I think some of the sentence structure with commas here and there, I didn't make that sort of change.
Q: Do you remember that you provided me with Exhibit 17 at your deposition?
A: I assume. I don't know what that exhibit is.
Q: Which relates to the list materials.
A: Yes.
Q: Okay. Do you remember that there was a three page abstract on top of those materials?
A: May I find those materials? I think they're still here.
Yes, I recall that.
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Q: Okay. What was the exhibit that Mr. Cearley put into evidence of the Bliss materials?
A: That was called the Two Model Approach.
MR. CHILDS: May I approach, your Honor?
THE COURT: Yes.
Q: I want to provide you with a copy that they provided to Judge Overton of Plaintiffs' Exhibit 128 and ask you if there is any difference between Plaintiffs' Exhibit 128 and the exhibit that you provided at your deposition, which was Defendants' Exhibit 17?
A: You'll have to give me a moment to look. As I said, these pages aren't numbered—
THE COURT: Do you have anything particular in mind?
MR. CHILDS: Yes, your Honor. It's a three page abstract that was a Ph.D. thesis that was attached to the—
THE COURT: Do you mean Doctor Bliss?
MR. CHILDS: Yes, your Honor. Which was not included within Plaintiffs' Exhibit 128, I believe.
Q: Is that correct?
A: I think it is. I didn't see that.
Q: What does the abstract of Doctor Bliss' Ph.D. thesis indicate?
A: I haven't looked at it in some time. Do you want me to read it over and summarize, or what? Is there some part you want me to—
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Q: Well, we took your deposition on December 2nd.
A: Yes.
Q: You saw it at that time, is that correct?
A: No, sir. The three page abstract?
Q: Yes, sir.
A: I don't recall seeing it, no.
Q: Do you recall—
A: I have seen it before. It was with this material when I originally received it. But this material has been sorted through and the pages are not numbered and it's not stapled together. But I do recall seeing it when he gave it to me.
Q: Do you have any present recollection of what that abstract indicates?
A: No, I don't.
Q: Would you take a moment to read it?
A: Yes, I will.
MR. CEARLEY: Your Honor, I wish, for the record, anyway, interpose an objection, if Mr. Childs intends to question Doctor Bliss' opinions, on the grounds that we have offered and will continue to offer a number of publications from the Institute of Creation Research as being the only materials available with which to teach creation science. The abstract that Mr. Childs is looking at presents, I
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MR. CEARLEY: (Continuing) think, results of a Ph.D. thesis or something of that sort that Doctor Bliss was involved in, and relates to the applicancy of the two model approach as a teaching tool.
And I just wish to note that I think that it is entirely irrelevant; that being a matter of his opinion only and not authored to anyone as materials toward teaching under a two model approach.
THE COURT: Well, if Doctor Bliss doesn't come testify, I don't care much what the abstract says about his opinions. I won't give any weight to those.
Q: What does the abstract indicate?
A: It indicates to me that he evidently undertook a study — you said it was his thesis or dissertation or whatever — to assess differences in concept, development and principle learning between students studying the origin of life from a two model approach compared to those using only a single model approach.
Q: Does he indicate that the students that were subjected or exposed to a two model approach showed significant improvement in concept development and cognitive skills compared to those studying evolution only?
A: That's what's indicated on page 3.
Q: Was a secondary spin-off that he described seem to show that the students taught in the two model fashion
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Q: (Continuing) would be more critical and willing to change ideas as new data came to the scene?
A: That's what he demonstrates—
THE COURT: Maybe my response to his objection wasn't very clear, but if Doctor Bliss doesn't come and describe how he arrived at these conclusions, I don't care what the conclusions. They are meaningless to me. It's just completely hearsay, not evidence.
MR. CHILDS: Your Honor, I think that ordinarily it would be, but this man is testifying as a curriculum development expert, and if these are the kinds of materials that he would ordinarily rely on, I think that we can get in through this witness.
THE WITNESS: May I interject? Is It appropriate?
THE COURT: It's fine with me. We will just turn this into an open forum, so go ahead.
THE WITNESS: I might say, this is simply an abstract. It presents none of his research.
THE COURT: I understand that, and that's the reason why it's meaningless to me. I'm not giving any weight to it. And I'm just suggesting that maybe if you just want to put it into the record for some purpose, you don't need to read it to me because I'm not going to give any weight to it unless Doctor Bliss comes here to testify.
MR. CHILDS: What's Defendants' next number? I
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MR. CHILDS: (Continuing) would ask that this be marked a Defendant's Exhibit Number 3 and ask that it be admitted in the record.
THE COURT: Yes, sir. We'll put it in the record, with that qualification.
MR. CHILDS: (Continuing)
Q: Have you seen any other material which would indicate that a two model approach helps children learn?
A: No.
Q: Have you seen anything to the contrary?
A: No.
Q: Do you have any explanation of how these three pages would be in the exhibit that you produced at your deposition and they would not be in the exhibit to be put in the evidence by the plaintiffs?
A: No.
Q: What is the basis of your conclusion that `balanced' means `equal'?
A: I don't believe I said that `balanced means `equal'. I said `balanced' means equal emphasis or equal legitimacy.
Q: And what does that mean?
A: Well, I think I said at the beginning, I don't really understand what it means. But because I am a working practitioner in the area of education, and this is going to affect me in a matter of just a few months, I've
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A: (Continuing) had to assume something, although the grounds upon which my assumption is made are almost non-existent. I just grabbed something out of the air. That's what my assumption is.
Q: Do you interpret `balanced' to require that equal amounts of time be spent?
A: I don't think equal amounts of time. I think equal emphasis and equal legitimacy. You don't exactly give them equal amounts of time. I don't view that as a problem, that particular statement.
Q: Do you interpret `balanced' to mean that a professional school teacher could not express their professional opinion as to the merits or demerits of either model?
A: I might preface that by saying, as I've said a couple of times before, that I really don't understand what it means. Because I have to implement this, if nothing's done, next September. I had to assume some things. And yes, I would assume that under my operational definition that I've given to it that this would not be allowed.
Q: Is that what you read into the Act, or is that what the Act actually says? Well, let me rephrase the question. Do you see anything in Act 590 which specifically says that a professional school teacher
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Q: (Continuing) cannot offer their professional judgment on either of these two models?
A: No, I don't see anything in the Act.
Q: Do you still hold to the belief that the reason that you think that `balanced' means `equal' is because of what Doctor Bliss told you?
A: Of course, I make judgments based upon all past knowledge, whether conscious or not. I assume that would possibly be a factor, yes.
Q: That was one of the things you told me at your deposition, was that the reason that you thought `balanced' meant `equal' was because of your meeting with Doctor Bliss.
Do you recall that?
A: No, I don't.
THE COURT: I don't think he has necessarily denied it. I just think he said he doesn't recall it.
Q: Are you denying that you said that?
A: No.
Q: Wouldn't the legislature have made it clear if that was their intent?
MR. CEARLEY: Your Honor, I can't think of any way that question is permissible. That's why we're here.
Q: Let me ask another question, then.
What is the current practice in the Little Rock School
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Q: (Continuing) District as to science teachers rendering their personal opinion, excuse me, their professional opinion about the subject matter that they teach?
A: Would you restate the first part of that? What is the practice?
Q: What is the current practice in the classroom in the Little Rock School District as to whether or not science teachers can give their professional opinion about the subject matter of what they are teaching?
A: I don't know that there is any common practice. I can't imagine too many instances that teachers would need to give a professional opinion on something they're teaching.
Q: I'm not sure that I understand you, Mr. Glasgow.
A: I think that in things that we teach in science, I think teachers realize that not all scientists hold to all the same theories or things of that sort; that there are disagreements. But I can't recall any classroom that I've ever been in where the teacher had to make a professional opinion about something that was being treated in that class as science.
Q: Are you telling me that the materials that are presented in the public science schoolrooms does not have any kind of element to it which would cause differences of
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Q: (Continuing) opinion?
A: I think there might be differences of opinion. But I can't recall of any class that I've ever been in - I may be wrong, but I just don't recall any class that I've been in where the teacher had to give a professional opinion that `this is whatever' and that `this is not' or anything of that sort.
I think they present the material. I think they might say that `the majority of scientists believe this; other scientists might believe this, others might believe that.' I don't think they give a professional opinion. I, as a professional scientist, which, in fact, they are not; they are science educators. But I, as a professional educator, `deem this science to be more appropriate or more valid than this science,' just for example.
I can't recall that there was ever the necessity for that.
Q: As an educator, is it your responsibility to judge information as to whether it is scientifically, technically correct or not?
A: I can view that question from a couple of different viewpoints. Can you restate it in a different manner? I'm not exactly sure—
Q: Do you consider yourself a scientist or as an educator?
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A: I consider myself an educator.
Q: As an educator, is it your responsibility to judge information as to whether it is scientifically, technically correct or not?
A: I'm not sure that I would agree that it would be my responsibility to determine whether it was technically correct or whatever. It's my responsibility as an educator to accept information that comes from the realm of science, the scientific community. And that which does not come from that area, it's the scientists' job to debate the technical merits of the data that is presented.
Q: Would it be safe to state that you accept as true what is accepted as true in the scientific community?
A: No, sir, that wouldn't be a correct statement. I accept as science what comes from the scientific community. I don't accept it as true. I don't think a scientist would, either.
Q: Well, are you teaching falsehoods?
A: No, sir. I think it has been presented before, science is not a matter of true and false or right and wrong.
Q: Do you rely upon the scientific community, scientific publication, professional groups of scientists, for your information?
A: Yes.
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Q: Do you question, as a scientist, that information?
A: I'm not a scientist, I'm an educator, and it's not my responsibility to question the information. I'm a science teacher or science educator; I teach science. The scientists, as I said before, debate the merits of the information.
Q: And you do not?
A: That's correct.
Q: How much do you know about John Thomas Scopes?
THE COURT: Could you narrow the question down a little bit?
Q: What do you know about John Thomas Scopes' attitude about education in the classroom?
A: Well, I think that perhaps your original statement didn't need to be narrowed, because I know very little at all. In fact, I'd say nothing. I wouldn't be comfortable in saying anything about his philosophy in the classroom.
Q: Well, I've got a book, and there is a statement about that that I'd like to present.
MR. CEARLEY: Your Honor, I recognize the flair that this line of questioning presents, but I don't think it's a proper line of questioning, unless he wants to ask Mr. Glasgow if he recognizes Mr. Scopes as an expert in the area of education or something of that sort.
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MR. CEARLEY: (Continuing) 1 think it's an improper question and I object to it.
MR. CHILDS: Your Honor, if the objection is to show—
THE COURT: To save time, just go ahead and ask him about it.
Q: Were you in court earlier when Doctor Morowitz—
A: Read the same thing, I believe. Yes.
THE COURT: Is that what you were going to ask him?
MR. CHILDS: Yes, sir.
THE WITNESS: "Education, you know, means—"
THE COURT: You don't need to read that. We all heard it.
MR. CHILDS: Continuing)
Q: Do you subscribe to Mr. Scopes' theory of education?
A: I've indicated already, I don't know what his theory or philosophy of education is.
Q: Well, do you believe in teaching every aspect of every problem or theory?
A: No.
Q: Do you believe that if you limit a teacher to teaching only one side of everything, this country will eventually have only one thought and be only one individual?
A: No.
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Q: Do you think that education should be a broadening and advancing experience for your students?
A: I think I could generally subscribe to that.
Q: I just want to make sure that I understand what you're saying. And if I misstate what you said, you correct me.
As I understand it, your position is that high school science classroom teachers and junior high classroom science teachers should pass along, without question, what is accepted within the scientific community. Is that an accurate or inaccurate characterization of your testimony?
A: I think that's inaccurate.
Q: Would you please tell me specifically how it's inaccurate?
A: I think that students have a right to question anything in their own mind. But students at this level do not have the professional backgrounds or the expertise or whatever to make judgments regarding the validity of anything in the area of science.
In fact I, as a person who has, oh, I don't know, maybe a hundred some-odd hours in science, most of the things, the data that is generated in science, I don't have the background and I'm not able to make judgements as to whether it's right or wrong. It takes someone with a great deal of technical expertise and someone that has
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A: (Continuing) worked in that area for a great length of time.
Certainly if I can't, students aren't able to make that. But in the sense that they can question, if they want to question, that's all right. I don't think that's appropriate for a student. Well, I don't say that they can't say it, but if a student says, `teacher, I don't agree with that particular theory', they can say that if they want to, but I don't think it's appropriate for the teacher to go into any sort of a detailed discussion as to the merits of that particular thing, because I don't think either the teacher or the students has the skills, the capability to make those judgments.
Q: Let me restate my characterization of your testimony, which would be, do you think that classroom teachers should pass along to their students what is accepted within the scientific community because neither the teachers nor the students have the ability to distinguish between good science and bad science?
A: That's basically correct.
Q: Did I misstate it in any way?
A: Well, I think there could possibly be exceptions. I'm not saying that that's true a hundred percent of the time. There might be some areas that they could make judgments on, I don't know. But basically that would be
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A: (Continuing) true. I think it's the duty of science teachers to teach science. We don't formulate the science, we simply teach it.
Q: Do you remember I asked you a hypothetical about Albert Einstein at your deposition?
A: Yes, sir.
Q: My hypothetical was, let us say that he appeared at the New York Legislature at the time that he was ready to publish his materials on the principle of relativity, and he advised the New York Legislature that he had a revelation, and that that revelation was that E=MC2, and that he wanted to require the New York Legislature to pass a law to teach his theory of relativity. Do you remember that hypothetical?
A: Yes.
Q: And I asked you what would have been the scientific community's reaction. Do you remember your response to that?
A: I assume my response is basically the same. I don't remember exactly what I said at that time. I don't think the scientific community would think very highly of that at all.
Q: I would like for you to read your response on page 28, line 14 through 17.
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A: "It's hard for me to guess. If I were a member of the scientific community myself at that time, what I think other members would do is that they would strenuously object to that."
Q: Would it be impossible for the Little Rock School District to develop materials which would present a balanced view?
A: My answer to that is that it would be impossible for teachers in the Little Rock School District to develop scientific materials, a unit, a science unit that would present a balanced view.
Q: Okay. And that presupposes in your definition that creation science is not science, does it not?
A: It does.
Q: And you've been unable to discern any evidence anywhere which would support any of the six definitions of Section 4 (a) of the Act?
A: Well, I have a problem with the word `evidence'. I think of `evidence' as facts, whatnot, things like that, I think that some of these are legitimate things that appear in scientific journals and are legitimately within the realm of science. But I think when you back off and look at the facts together, yes, I can't imagine any, and I haven't observed or come across any that would support creation science.
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Q: And is your concern with the creation science the interpretation of the information?
A: Interpretation of what, all the information that's in it, or what?
Q: Yes.
A: No. That's not my main objection to it at all.
Q: What is your bottom line objection to it?
THE COURT: Wait a second. We went over about forty-five minutes of his objections to it.
MR. CHILDS: I don't think I asked him-
A: My objection is-
MR. CHILDS: Wait, Mr. Glasgow. Excuse me.
THE COURT: Nobody ever said, `What's his bottom line objection,' but that was his whole direct testimony, was his objections to it or his problems with it.
MR. CHILDS: Let me go on to another question.
MR. CHILDS: (Continuing)
Q: Does the state of Arkansas have a recommended list of textbooks?
A: It has-- Yes, I guess you would call it that. It does have a list of textbooks from which you can make selections.
Q: Have you yourself or are you aware of anybody that has made a comprehensive literature search for information published in the area of creation science?
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Q: (Continuing) Let me ask, have you done that?
A: I have not made a comprehensive literature review, no.
Q: At the time of your deposition I asked you what you had done, and at that time, as I understood it, you had read basically three or four different authors.
A: I think three or four would be limited. I think, as far as read, I haven't read from front to back any that know of. I have scanned through to get a general overall picture of maybe ten or twelve different publications.
Q: At your deposition, Mr. Glasgow, my recollection and notes indicate that you could only refer me to Gish, Morris, and maybe two other authors in the creation science field.
A: I don't think I could refer you to any more than that now.
Q: Could you refer me to any more titles?
A: Well, I saw a book over on the desk a minute ago called Scientific Creation. I don't know who the author is. I don't recall if that's one of' the books that I've looked through.
Q: Any other books you can tell me that you've looked through?
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A: Other than those that I mentioned to you before?
Q: I don't think you named any names of any books that you've read.
A: I didn't remember the names of the books, no.
Q: Do you presently remember the names of any of those books?
A: Evolution: The Fossils Say No, was one that I read. I remember there was a book or two by Doctor Slusher that I looked through. No, I can't remember anymore.
Q: Okay. Now, then, during your deposition, when we went over these materials that Mr. Cearley has moved into evidence as exhibits, and the particular books in the Little Rock School District, did I ask you about each one of those books as to whether or not it could be balanced?
A: Yes. And in each of those cases, I said that it could be balanced, but not with legitimate appropriate scientific information.
Q: Not with what you would consider legitimate scientific information?
A: That's correct.
Q: Would you ever recommend textbooks with religious references?
A: Probably not.
Q: Would you ever recommend any kind of teaching
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Q: (Continuing) materials which would be footnoted to the Bible?
A: Probably not.
Q: Would you ever recommend any kind of teaching materials in the Little Rock School District which dealt with the words `Genesis', `Adam and Eve', or `Noah's Flood'?
A: No.
Q: Can a science teacher ignore your curriculum guide?
A: No, I don't think they can ignore it.
Q: In subsequent adoptions of textbooks, would you have to choose textbooks with a more balanced view?
A: You mean if Act 590 is implemented?
Q: If Judge Overton rules it is constitutional?
A: Right. Yes, I would think that we probably would.
Q: Is the reason that you are down here is because you are personally and professionally offended that the legislature would remove your discretion?
A: Partially.
MR. CHILDS: I have nothing further, your Honor.
THE COURT: Any redirect?
MR. CEARLEY: No, sir.
THE COURT: The court will be adjourned until 9:00 o'clock in the morning. I'd like to see the attorneys back in chambers.
(Thereupon, Court was in recess at 5:20 P.M..)
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VOLUME IV INDEX
Witness:
On Behalf of the Plaintiffs:
RONALD W. COWARD
Direct Examination by Mr. Cearley Page 720
Cross Examination by Mr. Clark Page 755
Redirect Examination by Mr. Cearley Page 808
Recross Examination by Mr. Clark Page 813
WILLIAM C. WOOD
Direct Examination by Mr. Crawford Page 816
Cross Examination by Mr. Childs Page 835
ED BULLINGTON
Direct Examination by Mr. Kaplan Page 867
Cross Examination by Mr. Childs Page 928
MARIANNE WILSON
Direct Examination by Mr. Kaplan Page 879
Cross Examination by Mr. Clark Page 920
WILLIAM VERNON MAYER
Direct Examination by Mr. Cearley Page 931
707
VOLUME IV - EXHIBIT INDEX
EXHIBIT OFFERED RECEIVED
Plaintiffs' No. 129 735 735
Plaintiffs' No. 15 747 747
Defendants' No. 4 785 785
Plaintiffs' No. 28 819 819
Plaintiffs' No. 71 824 824
Plaintiffs' No. 72 824 824
Plaintiffs' No. 73 824 824
Plaintiffs' No. 77 824 824
Plaintiffs' No. 79 824 824
Plaintiffs' No. 80 824 824
Plaintiffs' No. 81 824 824
Plaintiffs' No. 82 824 824
Defendants' No. 5 846
Defendants' No. 6 865
Defendants' No. 7 865
Plaintiffs' No. 36 - 39 879 879
Plaintiffs' No. 34 881 881
Plaintiffs' No. 26 886 886
Plaintiffs' No. 27 887 887
Plaintiffs' No. 24 903 903
Plaintiffs' No. 25 903 903
Plaintiffs' No. 18 - 23 909 909
Plaintiffs' No. 92 932 932
708
(December 10, 1981)
(9:00 A.M.)
(In Chambers)
THE COURT: Gentlemen, Judge Byrd represents some of the witnesses that we talked about yesterday afternoon. He originally intended to introduce their testimony by deposition. Apparently there were some records that the witnesses had in their possession that the witnesses do not want to turn over to the attorneys for plaintiffs. Judge Byrd, do you want to make a motion about that as attorney for the witnesses?
For one thing, I think we probably ought to identify the witnesses.
JUDGE BYRD: Well, the witnesses are Mr. W. A. Blount, Curtis Thomas and Carl Hunt.
I've been informed by the Attorney General that in my absence yesterday afternoon- I offered to be present with counsel, and they agreed we could show up at 8:30 this morning. I understand that yesterday afternoon the Court ordered the Attorney General to turn the records over to counsel for the plaintiffs and let them be copied. This is a violation of' my clients' rights. My clients have a right of political association, and they demand the records back and all the copies. They have the right, after the Court rules on our motion, to refuse and take
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JUDGE BYRD: (Continuing) whatever consequences the Court gives.
But if the Court will remember back when the state was trying to make the teachers list their associations and produce their records of associations, the Supreme Court said they had a freedom of association that was protected by the Fourteenth Amendment, the due process clause. They pointed out this is a political freedom that's each man's privacy, and the courts have to give them wide elbow room. It's very unfair for the ACLU to come in--
THE COURT: Pardon me, Judge Byrd. Before we get into the argument, I don't know what documents you are talking about. I don't know-
JUDGE BYRD: It's my clients' personal records.
THE COURT: Mr. Cearley, maybe you tell me how the matter came up, specifically.
MR. CEARLEY: Yes, sir. Your Honor, there was a document request attached to each subpoena that asked basically for any records or documents or written communications or literature in the possession of each of the witnesses that emanated from a list of creation science publishers or some specified individuals that have to do with the creation science movement. It was directed toward establishing where the information came from that resulted in the bill that was drafted by Paul Ellwanger and what was done with that bill.
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MR. CEARLEY: (Continuing) after it reached Mr. Blount's hands.
I have not examined the documents that were furnished, although co-counsel has looked at that or looked at those documents.
But I think the Court has previously ruled that we could introduce testimony and exhibits to establish the source of Act 590 or the Model Bill and the motivation or the purpose behind it, and that is what the document request was directed toward.
THE COURT: Well, off the top of my head, I-- Is Mr. Hunt the one that Senator Holstead identified as being a source of the bill?
MR. CEARLEY: Yes, sir.
JUDGE BYRD: He is.
THE COURT: Okay. And what connection do the other two witnesses have.
MR. CEARLEY: My understanding is that Reverend Blount received the bill from Paul Ellwanger; he gave it to Reverend Thomas who gave it to Mr. Hunt. Then it was given to Senator Holstead.
And the purpose of that was to establish that line of transmittal, flow and why it was done. And that was the reason for the document request.
JUDGE BYRD: The deposition showed that Curtis
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JUDGE BYRD: (Continuing) Thomas got the Act from Ellwanger and gave it to Hunt, and Hunt delivered it to Holstead.
THE COURT: Okay. Well, let me get this sequence down again. Mr. Hunt gave it to Senator Holstead. What did Mr. Blount have to do with it?
JUDGE BYRD: Mr. W. A. Blount and Mr. Thomas Delong to some kind of a loosely held alliance, some sort of Christian alliance, the exact name I cannot recall right now.
THE COURT: On Schedule A, is that the list of documents?
MR. CEARLEY: Yes.
JUDGE BYRD: No. The list of documents are on what you are looking at there, and A is supposed to be definitions.
MR. CEARLEY: Your Honor, there were two separate document requests. One was attached to the first subpoena which was issued and served last week requesting that each of the witnesses appear for deposition.
And after contact was made by Kathy Woods who represented each one of the witnesses at that time, that document request was narrowed. And I don't know which of the requests it is here that you've been furnished with.
THE COURT: (Handing document to Mr. Cearley)
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JUDGE BYRD: I've got a copy.
MR. CEARLEY: This would be the second one.
THE COURT: Okay. This is the final request?
MR. CEARLEY: Yes, sir.
THE COURT: If these three witnesses were the sources of the information that was given to Senator Holstead and resulted in the introduction of this bill in the Arkansas Legislature, I don't see how they could claim any sort of privilege about the material which was the source of the information they gave him.
JUDGE BYRD: The witnesses do not object to testifying. They did so freely. But this asks for any program, plan, strategy, tactic, policy or procedure regarding efforts to introduce creation in the public schools. And that gets back to freedom of association. Your Honor messed around with the Legislature for a session or two, and you are well aware that politics makes strange bedfellows.
THE COURT: That was one of the lessons I learned.
JUDGE BYRD: A preacher's associations or how he goes about associating or getting folks to do something is a freedom of association. And in the Tucker case that came out of the school integration crisis, they pointed out that the teachers had a freedom of association and 25
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JUDGE BYRD: (Continuing) didn't have to list their associations.
And here you are making these folks produce and show how they campaigned to get this done. It's wrong.
THE COURT: Well, I think and-
JUDGE BYRD: Would the Court like the cases?
THE COURT: Wait just a second. We both can't talk at the same time.
As I recall the matter of the teachers, it seems to me like that turned on the question of whether or not the state had a compelling interest in making teachers disclose all organizations to which they belonged. And I think it was determined that there was no such compelling interest. And there were some other acts, some other protections in that particular situation.
But it seems to me like the materials sought by this subpoena goes to the very heart of what the plaintiffs are trying to prove in this case; that these organizations, which are basically religious organizations with a religious purpose, have prepared this material and they've tried to get it passed in the legislature, and they've set out plans for doing that and strategy for doing that. And that's what this subpoena is calculated to try to produce, as I understand it.
JUDGE BYRD: Well, I disagree with his Honor's
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JUDGE BYRD: (Continuing) interpretation of Shelton vs. Tucker. It had nothing to do with a compelling interest of the state, and I'll read from the case, if the Court would like.
THE COURT: Well, it's been fifteen years or twenty years, I guess, so I might not remember much about that.
MR. CEARLEY: Your Honor, might I--
JUDGE BYRD: Let me finish. There's another case,
Gibson vs. Florida Legislative Committee, where the NAACP president was, they subpoenaed his list of people who belonged to it, and he refused to bring it, but he went up and testified. And the Supreme Court specifically held that he had the right of freedom of association not to produce the list.
And this is what we are complaining about. We don't think we need to educate the plaintiffs in this case how to go campaign with the legislature because it affects our associations. And they can go around, and they've publicly criticized my folks in the paper, called them the Moral Majority.
And they go around and gouge and put pressure. It's a subtle pressure, but it's there.
THE COURT: Are you suggesting this is a membership list that will be produced in response to this subpoena?
JUDGE BYRD: I didn't say it was a membership, but
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JUDGE BYRD: (Continuing) it asked for who they associated, contacted, and the records they had of who they contacted. And that's just as important as a membership list because it affects these folks' ability in the future.
THE COURT: Mr. Cearley.
MR. CEARLEY: Your Honor, in the first place, I think Shelton vs. Tucker was a case that dealt with the rights of public employees. And the thrust of that case was that public employees can't give up their constitu- tional rights just by virtue of their public employment. And there was no compelling interest on the part of the state to ask for disclosure in the form of the loyalty oath, as I recall.
I don't know about the Florida case, but I do know that this is a subpoena arising out of a specific lawsuit and directed toward a specific end. It's not a blanket fishing expedition. There is a purpose for it, and I think it's a legitimate purpose.
I simply know of no insulation from disclosure that would be available to these people.
JUDGE BYRD: The Florida lawsuit was specifically directed to whether or not certain communists were involved in the associations. And that's what they are trying to get here is, `How did you associate and with
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JUDGE BYRD: (Continuing) which legislator,' and what have you.
And unfortunately, these folks are preachers. They are not politicians. As you know, politicians don't keep records, but preachers do.
THE COURT: As I understand it, the Attorney General has the material?
MR. CEARLEY: The Attorney-
JUDGE BYRD: Unfortunately, they've been turned over to these folks, and we want them back.
THE COURT: I directed the Attorney General to turn those records over to the plaintiffs. He didn't do it gratuitously.
JUDGE BYRD: I understand.
THE COURT: Where is the material you are talking about?
MS. KERR: It is being copied, your Honor.
MR. CEARLEY: Your Honor, this is Peggy Kerr, co-counsel.
We've not even examined the materials. We sent it out to have it copied, and I can't even tell the Court what's in those materials at this point in time.
THE COURT: Well, the analogies you draw, Judge Byrd, I don't see are applicable to this situation, but I will look at the material. And direct the attorneys to
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THE COURT: (Continuing) turn it over to me, and I'll look at it before we proceed any further with that part of the case.
JUDGE BYRD: If they would have asked for particular records, we would have given them particular records. This does not ask for particular records. It asks for their strategy.
Now, if they just want to know if they've got something from Ellwanger, I'll be glad to pull it out of the record and give it to them.
THE COURT: I don't think they are interested in limiting their request to just what they got from Ellwanger.
JUDGE BYRD: Well, your Honor, I feel like I've been taken advantage of. We had an agreement with counsel. Mr. Clark was there. And I told him we would seal them up, and Mr. Clark would hold the records until we got a ruling.
THE COURT: I made that ruling yesterday afternoon.
JUDGE BYRD: And the problem is that now my clients don't have a choice of whether they refuse to turn over the records or not. And this is what the NAACP president refused. He was convicted of contempt, and won. And my clients don't have that choice.
THE COURT: I don't understand what you are
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THE COURT: (Continuing) proposing to me at this point.
JUDGE BYRD: Well, I propose that they are still my clients' records. And after the Court rules, my clients have a right to sit down and make a decision whether they turn them over or not.
They can take the consequences if they don't want to, but that's their choice.
MR. CEARLEY: Your Honor, I might add I don't recall that these records were sealed in any manner, and they were given to the Attorney General.
It's not a question of privacy. They just don't want to give them to us.
JUDGE BYRD: They weren't given to him to review. MR. CLARK: Your Honor, when they were given to me, they were not sealed, actually, in an envelope. That's correct. I did not examine them. We tied them up in rubber bands or strings or whatever and just left them alone, not to be examined until there was some ruling by the Court, which there was. And at that point, they were given to Mr. Cearley for copying, the originals to be returned today.
THE COURT: Judge Byrd, I don't see any legal argument to what you are making. And the records certainly aren't privileged in any way. It seems to me like they are properly sought under the subpoena.
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THE COURT: (Continuing) I don't quite understand the point about your clients didn't have the opportunity to be in contempt. I certainly don't want anybody in contempt of Court, but-
JUDGE BYRD: They do not either, but they have a right to make a choice on their records. And this is my complaint with the Court. I was available- I offered to make myself available, and it was agreed I'd be here at 8:30 this morning for a ruling.
THE COURT: Well, I didn't know that. Nobody told the Court.
JUDGE BYRD: I understand that, but counsel knew that, and they evidently got a ruling.
MR. CEARLEY: I didn't know that either, your Honor.
MS. KERR: The problem is that I agreed to call Judge Byrd when this was going to come before the Court for a ruling.
THE COURT: Well, that is something that wasn't brought to my attention. Why don't you get the materials back, and I will take a look at them.
MS. KERR: They will be available at noon today. They are being copied right now.
THE COURT: Where are they?
MS. KERR: At a printer's a couple blocks from here.
THE COURT: Why don't you send somebody to pick them
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THE COURT: (Continuing) up, and I will take a look at them.
(To Judge Byrd) I would suggest that until we resolve this maybe you ought to stay around.
JUDGE BYRD: Plan on it.
(9:20 a.m.)
(Open Court)
MR. CEARLEY: Your Honor, Plaintiffs call Ron Coward.
Thereupon,
RONALD W. COWARD,
called on behalf of the plaintiffs herein, after having been first duly sworn or affirmed, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. CEARLEY:
Q: Will you state your full name for the record, please?
A: Ronald W. Coward.
Q: And your occupation, Mr. Coward?
A: I'm a teacher with the Pulaski County Special School District.
Q: How long have you been employed in that capacity?
A: I'm currently in my nineteenth year.
Q: What subjects do you teach?
A: I currently teach biology and psychology.
Q: Will you tell the Court - briefly , Mr. Coward , what
