Suit filed over
prayer
Coach tests East
Brunswick school district's stance
By GREG TUFARO, Home
News Tribune Online, November 22, 2005
East Brunswick High School football
coach Marcus Borden filed a lawsuit against the school district yesterday,
claiming it is violating his constitutional rights by prohibiting him from
participating in nonsectarian team prayer.
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Coach Marcus Borden |
Ronald J. Riccio, a constitutional
law expert representing Borden pro bono through the Seton Hall University Center
For Social Justice, filed the lawsuit on the veteran mentor's behalf in Superior
Court in New Brunswick.
The school board and schools Superintendent JoAnn Magistro were also named as
defendants in the lawsuit.
School board attorney Martin Pachman said last night he had not received a copy
of the 26-page complaint that the Home News Tribune obtained yesterday.
"I can't comment on the substance of the lawsuit other than to say it has been
filed, and once we review it we'll be in a position to respond," Pachman said.
"If this lawsuit is designed to change the law, I understand that, but I wish
they'd do it on somebody's else's nickel rather than the East Brunswick
taxpayers."
A national award-winning coach, Borden was preparing his team yesterday for its
season finale against Old Bridge. He did not return calls seeking comment.
Borden previously stated he is making a stand, not just for himself, but for
coaches across the country.
More than 50 percent of high school football coaches nationwide pray with their
teams, according to Grant Teaff, executive director of the American Football
Coaches Association. Those nondenominational prayers, Teaff said, give
thanks or ask God to keep players and their opponents free from injury.
Borden's story garnered national attention when he resigned in protest of the
district's prayer ban on Oct. 7. He rescinded that resignation 10 days
later to keep his fight against the district's policy alive.
Many districts throughout the country have since restated their school prayer
guidelines, preventing other coaches from praying with their teams in the
process. As a result, Riccio said, he expects several state and national
organizations will file amicus briefs on Borden's behalf.
The complaint filed yesterday contends, "The prohibition against Coach Borden
demonstrating respect for his team and the team prayers undermines his
credibility as head coach, is a sign of disrespect and irreverence for his
players and the team prayers, forces Coach Borden to ... discriminate against
the team prayers and his players, interferes with his academic freedom,
interferes with his freedom of association, interferes with his freedom of
speech, interferes with his liberty of movement, invades his privacy and
violates all that it means, and has ever meant to him, to be a high school
football coach in America."
Riccio said litigation could be avoided if the district allows Borden to stand
and bow his head during student-initiated, student-led grace at team dinners and
allows Borden to "take a knee" during student-initiated, student-led pre-game
prayer in the locker room.
Riccio said he unsuccessfully tried to reach such an agreement with Pachman last
month.
"We'll take it as far as we have to take it," Riccio said, "but we are hopeful
that the defendants will reconsider their position once they've had a chance to
read our complaint."
Pachman said Borden's request could expose the district to liability under the
U.S. Constitution's establishment clause, which protects the separation of
church and state by prohibiting government from establishing a state religion.
"We think that no person, especially in the context of this case, could
reasonably understand that if Coach Borden bowed his head and "took a knee' that
this would constitute government endorsing or coercing religion," Riccio said.
In an Oct. 7 letter to Borden, Pachman disagreed. He cited a 1995 Fifth
Circuit Court of Appeals decision later approved by the U.S. Supreme Court.
"To quote the court," Pachman wrote, " 'If while acting in their official
capacities (school district) employees ... manifest approval or solidarity with
student religious exercises, they cross the line between respect for religion
and endorsement of religion' and such conduct (is) prohibited."
Riccio said Borden's constitutional rights have been violated since Pachman and
Magistro issued the coach "preliminary" school prayer guidelines on Oct. 7.
The guidelines stemmed from complaints Magistro said she received on Sept. 28
from a teacher, several students and their parents whose identities she has
protected.
Riccio said no member of the East Brunswick football family complained about the
team prayer activity. He wrote in the lawsuit that Borden's rights to due
process were violated.
"Despite Coach Borden having a legal right to notice of the source and substance
of the complaint concerning the team prayers," Riccio wrote, "he has been
arbitrarily prevented by (the) defendants from obtaining such confirmation."
Under East Brunswick's guidelines, Borden cannot initiate or participate in team
prayer, a tradition the coach said he inherited upon taking over the high
school's football program 23 years ago. Violating the guidelines, which
Pachman said are based on U.S. Supreme Court and lower federal court rulings,
could lead to Borden's termination.
Borden was named the AFCA's 2004 National Power of Influence Award winner and
recipient of USA Weekend Magazine's 2003 National Caring Coach of the Year
award. He is the founder of the Snapple Bowl, a charity all-star high
school football game that has generated more than $150,000 for physically and
mentally impaired children.
Riccio called the guidelines vague and unconstitutional. Part of the
complaint seeks an injunction against the enforcement of the guidelines.
"For them to put his livelihood on the line without telling him specifically
what he can and cannot do," Riccio said, "is extremely unfair. Their
orders are so over broad and unintelligible that no reasonable person could know
what they can and cannot do when the team says its prayers."
Pachman said Riccio is asking him to make a distinction between participation
and respectful observation.
"If he wants to play the game, we can make 4,000 hypotheticals and I'm not sure
that there is any way that, other than examining them one by one in their full
context, that some authority is going to be able to determine whether or not
they constitute prohibited conduct," Pachman said.
Pachman said yesterday that Borden could be present in the cafeteria, standing
off to the side and respectfully bowing his head while players say grace, but
that he thought it was "inappropriate for (Borden) to take a knee anywhere"
while the team prays and he is its coach.
The complaint alleges that Pachman told Borden on Oct 7. that he had to
"physically remove himself from the room when his team engaged in the team
prayers" and that Pachman did not clearly define what constituted participation.
Pachman said yesterday he "absolutely never told (Borden) to remove himself"
from the room during student-initiated, student-led prayer.
Two nationally respected constitutional law experts from Washington, D.C. —
Ayesha Khan and Frank Manion — have disagreed on whether Borden's rights are
being violated.
"This fellow threatening to sue is pretty much making an empty threat," Khan,
legal director for Americans United for Separation of Church and State, said
last month. "It would certainly be a waste of his time and money. He
would clearly lose."
Manion, senior counsel at the American Center for Law & Justice, said in October
he believes Borden's rights are being violated.
"I think the coach is absolutely within his right to do that," Manion said of
Borden's desire to stand and bow during student-initiated, student-led grace.
"I think the school board is being ridiculous."
The district has 20 days to answer the complaint. Riccio said he expects
Pachman will ask for an extension. He said the court will not render a
decision before Jan. 1.
gtufaro@thnt.com
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