April 2009 Church & State | Featured

New Jersey football coach Marcus Borden was running out of options. A federal appeals court had rejected the East Brunswick High School official’s argument that he had a right to engage in religious activity with students. 

Desperate, Borden’s lawyers threw the legal version of a Hail Mary pass, asking the U.S. Supreme Court to hear a final appeal of his case.

Unfortunately for Borden, the play was not completed. The high court on March 2 announced it will not hear an appeal of Borden’s case. The decision brings the three-year legal battle to an end.

Americans United, which represented the East Brunswick School District on appeal, hailed the court’s action.

“A coach’s job is to teach kids how to play a sport, not promote religion,” said Barry W. Lynn, executive director of Americans United. “This case is a firm reminder that parents, not school personnel, are the rightful decision-makers when it comes to children’s religious upbringing.”

The Supreme Court’s rejection of the case brought to a sudden close a legal fight Borden launched in October of 2005. Ordered by school officials to stop praying with football players and other students, Borden angrily resigned his coaching position. But he quickly changed his mind, took the job back and promptly filed a lawsuit against the school.

Borden had been coaching since 1983, and the record showed that during that period, he had regularly led players in pre-game prayers, designated students to lead prayers and lined up chaplains to pray before team meals.

But in court, Borden’s attorneys made a different argument: The coach, they insisted, no longer wanted to pray with the students. He merely wanted to join them as a student led a prayer and show respect by bowing his head and going down on one knee.

The problem was, any observer looking at the scene would have assumed Borden was still praying with the students. A photo that ran in the Boston Globe showing Borden on his knee surrounded by players only drove the point home.

Nevertheless, Borden won an initial victory on July 25, 2006, when U.S. District Judge Dennis M. Cavanaugh decided in his favor. Ruling from the bench, Cavanaugh accepted Borden’s argument and declared that the school’s policy curbing Borden had gone too far. Even more alarmingly, Cavanaugh seemed to be saying that Borden had a constitutional right to engage in religious activities during school events.

Attorneys with Americans United read about the decision and were alarmed. Numerous federal courts, they noted, had ruled that public school personnel have no right to pray with students. Cavanaugh’s decision ran against the grain and if allowed to stand could set bad precedent as well as spawn confusion in public schools all over the country.

Americans United offered to represent the East Brunswick School District on appeal at no cost. AU Assistant Legal Director Richard B. Katskee met with district officials and outlined an avenue for appeal. Katskee explained that Cavanaugh’s ruling was out of step with other decisions on school prayer and was vulnerable.

But there was a risk as well. If the 3rd U.S. Circuit Court of Appeals upheld Cavanaugh, not only would his ruling be enshrined, it would apply not just in New Jersey but elsewhere in the 3rd Circuit – Pennsylvania, Delaware and the U.S. Virgin Islands.

District officials decided to push ahead, and Katskee, backed by AU’s legal team, worked to sharpen their argument in a legal brief. In October of 2007, Katskee argued the case before the 3rd Circuit. Although the judges were hard on Katskee and asked a lot of probing questions, the panel ultimately voted 3-0 on April 15, 2008, to reverse Cavanaugh’s decision. (See “Offside, Out of Bounds and Unconstitutional,” June 2008 Church & State.)

The appeals court, noting that Borden had led prayers with students for 23 years, ruled that a reasonable observer would conclude that Borden was continuing to endorse religion. 

The court, in a 51-page lead opinion written by Judge D. Michael Fisher, an appointee of President George W. Bush, went on to say that district policies banning employees from engaging in religious activities with students were constitutional.

The policies, Fisher wrote, “were necessary for the School District in order to avoid [church-state] violations.”

That left Borden and his legal team, headed by Ronald J. Riccio, former dean of Seton Hall Law School, with one more option: an appeal to the Supreme Court.

Borden and Riccio’s hopes were dashed when the high court declined the case, Borden v. School District of the Township of East Brunswick, without comment. The case was listed among dozens of others that the court rejected the same day.

Officials at the East Brunswick School District hailed the outcome.

“Public school officials simply may not engage with students in religious activity,” said East Brunswick Board of Education President Todd Simmens. “Consistent with this law, the board of education and district officials have, throughout this case, made certain that no school employee supervises or otherwise participates in any type of prayer with our students.

“Needless to say,” Simmens concluded, “the board is pleased that, in this case, the courts have reaffirmed this long-standing constitutional principle.”

Throughout the legal action, Simmens, East Brunswick Superintendent Jo Ann Magistro and other school officials made it clear that the district’s official policies permit students to engage in voluntary, non-disruptive prayer in school. School employees, however, are barred from intervening in the religious lives of students.

Some parents believed Borden was doing just that. After a parent called Magistro to complain, the superintendent told Borden to stop his prayer activities. Borden replied that students who didn’t like his prayers could go wait in the bathroom.

The situation took an even uglier turn when word of the controversy leaked out to students. Some of the students became convinced that two Jewish cheerleaders had initiated the complaints. (In fact, the school district, citing confidentiality concerns, never publicly identified the families that raised the issue.)

A student-run blog was soon riddled with anti-Semitic messages. One poster wrote, “Damn Jews….then you wonder why Hitler did what he did back in the day.”

As the case rolled through the courts, the controversy generated by Borden’s actions attracted national attention – and raised the ire of some coaches. After the 3rd Circuit’s ruling, the American Football Coaches Association, a group that represents football coaches at all levels, including many at public high schools, called on the high court to hear the case.

Perhaps instilling football with more gravity than it deserves, the group asserted in a legal brief, “When life gets serious, people pray. When life transitions from one stage to the next – graduation, marriage, parenthood, retirement, death – people pray. There is a reason why persons are not typically moved to pray before playing monopoly, or bridge, or a round of golf with friends, but frequently are moved to pray immediately prior to or after playing a high school or college football game.”

The Borden case also put the spotlight on a little-discussed fact: Many public school coaches are apparently flagrantly violating court rulings. Since 1962, the Supreme Court has ruled consistently that public schools may not sponsor religious worship. In 2000, the high court specifically addressed school-scheduled prayers before public school football games, declaring them unconstitutional. There is no exception for coaches in these rulings, but some act as if there is.

On Feb. 24, The Tennessean newspaper in Nashville ran a story about the Borden case quoting local coaches, several of whom talked openly about their prayer practices.

“Every day when we finish practice, we take a knee, bow our heads and say the Lord’s Prayer – every day. We don’t miss a day,” football coach Louis Thompson of Lincoln County High School said. “Along with the Lord’s Prayer at practice, we have a silent prayer before each game where I tell them to pray for themselves and their teammates.”

Thompson vowed to keep praying with students. “I’m going to continue to do it, and I couldn’t care less what the Supreme Court says or does,” he said.

Others have argued that coach-led prayer isn’t really religious. After the Supreme Court declined to hear the case, John W. Whitehead of the Rutherford Institute, a Virginia organization that acted as co-counsel to Borden, issued a statement asserting, “This undermines a time-honored tradition that has less to do with religion than it does athletic tradition.”

A number of religious groups anticipated this argument. When the case was before the appeals court, several religious groups filed briefs pointing out that kneeling and bowing the head are “core acts of religious expression.” The organizations were the Interfaith Alliance; the Anti-Defamation League; Hadassah, Jewish Women International; Muslim Advocates; the Sikh American Legal Defense Fund; the Sikh Council on Religion and Education; the Union of Reform Judaism; the American-Arab Anti-Discrimination Committee; the Hindu American Foundation and the Unitarian Universalist Association.

Religious Right groups that weighed in on the case persisted in not giving an accurate portrayal of the controversy. They insisted that all Borden wanted to do was bow his head and take a knee as a sign of respect, never mentioning Borden’s 23-year history of leading and organizing religious activity with students.

The Alliance Defense Fund (ADF), a Religious Right legal group founded by a coalition of radio and TV evangelists, filed a friend-of-the-court brief on Borden’s side. In a press release about the brief, the ADF ignored Borden’s long habit of intervening in the religious lives of young people – even though this fact was crucial to the case.

“Coaches and teachers shouldn’t be told to disrespect religious students on a public school campus,” said ADF Chief Counsel Benjamin Bull. “We’re in big trouble in this country if a high school football coach can’t even show respect during the prayer of his players. The Constitution does not prohibit him from bowing his head or kneeling during student-led prayer.”

The ADF’s brief, which lists Reagan-era Attorney General Edwin Meese III as co-counsel, asserts that the school district’s policy was an act of “hostility toward religion.”

AU’s Lynn, an ordained minister, sharply disagrees. Lynn said the Borden case affirms the important principle that public school employees have no right to meddle in the religious lives of students.

“Coaches should stick to calling plays and planning strategy,” Lynn said. “Decisions about when, how and whether to pray belong to a young person and his or her parents, in consultation with the spiritual leaders of their choice.”