Football coach may
take prayer fight higher
By GREG TUFARO
thnt.com Online from the Web, April 16, 2008
EAST BRUNSWICK -- East
Brunswick High School football coach Marcus Borden, who said he is fighting for
his peers nationwide, is expected to petition the U.S. Supreme Court for a
review of Tuesday's federal appeals court ruling that prohibits him from
participating in team prayer.
The U.S. 3rd Circuit Court of Appeals in Philadelphia unanimously reversed a
July 2006 lower-court ruling that permitted Borden, through his lawsuit against
the East Brunswick Board of Education, to silently bow his head or "take a knee"
with players as a sign of secular respect for student-led team prayer.
The federal appeals court said such actions violate the First Amendment's
establishment clause, which prevents government or its agents from promoting or
endorsing religion.
The ruling, unlike that of the lower court, said the school board did not
violate Borden's constitutional rights when it made him adhere to a policy
barring district employees from participating in student-led prayer.
"The ruling underscores that school district employees, including football
coaches, have to obey the establishment clause and have to respect the religious
rights of students," said Richard B. Katskee, assistant legal director for
Americans United for the Separation of Church and State, which represented the
school board in its appeal of U.S. District Judge Dennis Cavanaugh's ruling.
"It also reinforces the right of the school district to step in and protect
students and to make policies and decisions with that goal in mind."
The federal appeals court's 70-page opinion prohibits coaches such as Borden,
who have a long history of participating in team prayer, from continuing to do
so, but it does not clarify what other coaches should do when their teams pray,
which may cause confusion for other coaches nationwide.
"Without Borden's 23 years of organizing, participating in and leading prayer
with his team, this conclusion would not be so clear as it presently is," wrote
Judge Michael D. Fischer, author of the lead opinion.
"We agree with Borden that bowing one's head and taking a knee can be signs of
respect. Thus, if a football coach, who had never engaged in prayer with his
team, were to bow his head and take a knee while his team engaged in a moment of
reflection or prayer, we would likely reach a different conclusion because the
same history and context of endorsing religion would not be present."
Judge Marianne Trump Barry, who authored one of the two concurring opinions,
called the case "difficult and close." She said that Borden would "not be
required to keep his head erect or turn his back or stand and walk away" when
the team prays for such actions would suggest a "hostility to religion."
Trump Barry concurred with Fischer that she would likely find "no endorsement of
religion were a football coach, who had never engaged in prayer with his team,
to bow his head or take a knee while his team engaged in a moment of reflection
or prayer."
Judge Theodore McKee, who wrote the third concurring opinion, disagreed with his
colleagues. He said taking a knee or head-bowing would look like an endorsement
of religion even to someone who did not know the coach had led prayers in the
past.
Borden's attorney, Roanld J. Riccio, said he will likely ask the U.S. Supreme
Court to consider the case in an attempt to clarify what Borden and other
coaches can actually do when their teams pray.
"The ruling is clearly a reversal of the victory that we won below but the
decision is so fragmented it really cries out for a U.S. Supreme Court review to
settle the question once and for all," Riccio said.
"While Marcus Borden may not be able to bow his head or take a knee with his
team for the time being, just about every other football coach in New Jersey can
bow his head or take a knee with his team so long as he had never engaged in a
prior practice of leading his team in prayer."
Stephen D. Solomon, an associate professor of First Amendment Law at New York
University and author of a book on a major U.S. Supreme Court decision on school
prayer, said he believed the federal appeals court made the correct ruling but
that some wording in the opinion opened "a big door" for other coaches.
"To suggest as they do that a coach without (Borden's) history may very well be
able to do this with his team, it does throw open a big door," Solomon said,
"and the court is doing that without knowing the different factual circumstances
that would surround another coach's participation in such prayers and those
facts may make it a constitutional violation as well.
"It's very strange. It leaves everybody else kind of wondering."
Borden's case garnered national attention and renewed debate about the
separation of church and state when he resigned in protest of the district's
policy, which it restated in response to student complaints, in October 2005. Borden rescinded that resignation 10 days later to keep alive a legal challenge
and filed suit the following month.
Borden, who was hosting an annual spring football team ice cream party at the
high school last night, said he would not comment on the ruling until he had a
chance to carefully review the federal appeals court's opinion.
Jo Ann Magistro, Superintendent of East Brunswick Public Schools, said she was
"pleased" with the ruling, which upheld the district's policy against employees
participating in prayer as "reasonable."
"The district pursued this case to protect children who could not protest
pressure to participate in religious activities at school events," Magistro
said. "Today's ruling accomplished that goal. Every student is a valued member
of our community and their religious beliefs, or lack there of, can never be
used to separate them from their peers and teammates."
Magistro said students will be allowed to continue to voluntarily pray whenever
and wherever they wish and that the decision deals strictly with district
employees' ability to participate in religious activities with students.
Grant Teaff, executive director of the American Football Coaches Association,
who estimates more than half of high school football coaches nationwide
participate in team prayer, said he was "floored" by the decision.
Warren Wolf, the dean of New Jersey high school football coaches who will enter
his 51st season next fall, and Colonia head coach Ben LaSala, president of the
New Jersey Football Coaches Association, said they were "disappointed" with the
ruling. Both coaches have shown respect for team prayer in the past.
"I think that's a shame," LaSala said. "I feel like it's a blow to me at
Colonia. It (team prayer) is an important part of what we do every day we go out
on the field, including summer. We always take a second (to reflect or pray)
before practice."
Wolf said he disagreed with the opinion but would abide by the ruling.
"I think the American way is one right now that gives you the right to pray if
the boys want to do so with you," Wolf said. "Now somebody's saying that you
can't do that even if the boys want. I am personally disappointed in it but we
all have to live with these mandates and I'm sure coach Borden — like the rest
of us — is going to do as he is instructed."
Riccio said Borden, a tenured Spanish teacher at the high school who will enter
his 25th season as East Brunswick's football coach in the fall, will obey the
ruling.
gtufaro@thnt.com
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