East Brunswick coach
seeks rehearing
of court decision in
team prayer case
By GREG TUFARO,
thnt.com on the Web, May 7, 2008
East Brunswick High School football
coach Marcus Borden has petitioned a federal appeals court for a rehearing of a
decision that overturned a lower-court ruling permitting the veteran mentor to
participate in team prayer.
In a petition filed late last week, Borden's attorney, Ronald J. Riccio, argued
that the U.S. 3rd Circuit Court of Appeals in Philadelphia rendered a decision
that discriminates against some coaches and is inconsistent with 3rd Circuit and
U.S. Supreme Court precedents.
Riccio argued that the full court — all 15 judges serving on the federal appeals
court — should rehear the case, claiming the April 14 decision of the 3rd
Circuit's three-judge panel was fractured and took into account issues not
raised in the lower court.
"The issues in this case are of exceptional importance to public school
teachers, coaches, students, parents, school administrators and the general
public," Riccio wrote.
"Such an important, "difficult and close case,' should not be decided on the
basis of a flawed record on appeal and in a manner that conflicts with
controlling and binding precedent."
The federal appeals court unanimously — but with each judge writing a separate
opinion — 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 federal appeals court's ruling prohibits coaches such as Borden, who have a
long history of participating in team prayer, from continuing that activity, but
it does not clarify what other coaches should do when their teams pray.
"Apparently, it is only Borden, given his prior (23-year) history, who cannot
constitutionally respond to constitutionally protected student-initiated and
student-composed prayer but, if he can, we are not told what response might be
permissible," Judge Maryann Trump Barry wrote in one of two concurring opinions
cited in Riccio's petition.
In his petition for an "en banc" rehearing, Riccio argued that Borden was
prejudiced by the panel's improper reliance on evidence that was not part of the
record and on anonymous hearsay that would not be admissible at trial.
Riccio said Judge D. Michael Fischer's lead opinion is "contrary to the Supreme
Court precedent because it incorrectly and unduly narrows the free speech and
due process rights of public school teachers."
Riccio said the 3rd Circuit Court of Appeals' ruling impermissibly discriminates
among coaches based on their prior religious expression.
Borden led his players in prayer for his first 23 seasons as East Brunswick's
head football coach. He ceased such activity in the middle of the 2005 season
upon the request of the school district after the parents of at least one high
school student threatened litigation.
"One class of coaches, because of prior prayer, is suspect," Riccio said of the
federal appeals court's ruling. "Coaches in this class are permanently branded
as Establishment Clause violators. They can never show respect for prayer even
though their prayerful activities stopped. But coaches with no prior prayer
history are not suspect and, therefore, are free to show respect for student
prayer."
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.
Ninety-nine percent of petitions for "en banc" rehearings are denied. Should Riccio's request be honored, the federal appeals court will ask before the end
of this month that Americans United for the Separation of Church and State,
which is representing the East Brunswick Board of Education pro bono, answer the
petition.
GayPASG Note: Here you have a coach that does
not accept that we are a secular nation and that religion does not trump basic
Civil and Human Rights.
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