Offside, Out Of Bounds And Unconstitutional

Federal Appeals Court Blows The Whistle On New Jersey Football Coach’s Prayer Play

For football coach Marcus Borden of East Brunswick High School in New Jersey, organizing, sponsoring and participating in prayers with players, cheerleaders and other students seemed the natural thing to do.

Others felt differently. A few years ago, some students began expressing discomfort with the religious practices. After a parent called Superintendent Jo Ann Magistro to complain, she told Borden to stop leading prayers. Borden’s response was unusual: If students didn’t like the prayer, they could go wait in the bathroom.

As more complaints filtered in, Borden agreed to stop praying with the students. He replied that from then on, the prayers would be led by students. He would “take a knee” and bow his head as a sign of respect.

But had anything really changed? The Boston Globe photographed Borden, surrounded by players, on one knee, head bowed and hands folded. Anyone glancing at this photo would have assumed that Borden was praying with students.

Not surprisingly, the matter ended up in the federal courts. On April 15, the 3rd U.S. Circuit Court of Appeals issued a unanimous ruling stating that school officials had the right to curb Borden’s actions. Americans United for Separation of Church and State, which represented the school district, hailed the decision as an important reaffirmation of the principle that teachers and other school officials have no right to engage in religious activity with students.

“Public schools have the right and responsibility to protect students from religious coercion,” said Americans United Executive Director Barry W. Lynn in a press statement. “Parents, not public school staff, have the right to determine what religious exercises, if any, their children take part in.”

The appeals court agreed, holding that most people observing Borden’s actions and knowing of his history would conclude that he was endorsing religion.

“We find that, based on the history of Borden’s conduct with the team’s prayers, his acts cross the line and constitute an unconstitutional endorsement of religion,” wrote Judge D. Michael Fisher. “Although Borden believes that he must continue to engage in these actions to demonstrate solidarity with his team, which is perhaps good for a football team’s unity, we must consider whether a reasonable observer would perceive his actions as endorsing religion, not whether Borden intends to endorse religion.”

Continued Fisher, “[I]n Borden’s case, the conclusion we reach today is clear because he organized, participated in, and led prayer activities with his team on numerous occasions for twenty-three years. Thus, a reasonable observer would conclude that he is continuing to endorse religion when he bows his head during the pre-meal grace and takes a knee with his team in the locker room while they pray.”

The case had its kickoff in November of 2005, when Borden sued the school district, asserting that his rights had been violated. The school district responded that its actions were designed to maintain the separation of church and state. The standoff headed for court.

U.S. District Judge Dennis M. Cavanaugh found in Borden’s favor on July 25, 2006. Ruling from the bench, Cavanaugh dismissed the school district’s concerns and glossed over Borden’s long history of praying with students. He went on to say Borden was entitled to attorneys’ fees and court costs.

Attorneys at Americans United were shocked when they read about Cavanaugh’s decision in New Jersey newspapers. No court had ever said that public school employees have free speech or religious freedom rights to engage in religious activity with students.

AU immediately contacted school officials and offered to represent them at no cost. An appeal was filed before the 3rd Circuit, with AU Assistant Legal Director Richard B. Katskee taking a lead role in the case.

Katskee, who helped forge Americans United’s argument in the legal challenge against “intelligent design” creationism in Dover, Pa., public schools, plunged promptly into this new effort. Katskee knew he faced serious obstacles, in light of Cavanaugh’s hostile decision from the bench.

In October, Katskee argued the case before a three-judge panel of the 3rd Circuit. The hour-long argument was grueling, and Katskee faced aggressive questioning from two of the judges. He left the argument feeling concerned that some members of the panel might agree with Cavanaugh’s reasoning.

The opinion in Borden v. School District of the Township of East Brunswick, then, came as something of a surprise. The 51-page lead opinion, written by Judge D. Michael Fisher, an appointee of President George W. Bush, finds that the school district’s decision to curb Borden’s actions was reasonable.

“[W]e conclude that the guidelines and the Board’s statement were not unconstitutional on their face, were not unconstitutional as applied to Borden, and in fact, were necessary for the School District in order to avoid [church-state] violations,” wrote Fisher.

Fisher highlighted Borden’s long history of promoting prayer.

“For twenty-three years, Borden led the team in a pre-game prayer in the locker room,” observed the judge. “During that same period of time, Borden orchestrated a pre-meal grace for his team. He originally had a chaplain conduct the pre-meal grace. This practice changed only after school officials asked him to stop; then he had the chaplain write the grace and he selected seniors on the team to recite it. Additionally, during at least three seasons, Borden led the team in the first prayer of the season.”

These actions, Fisher wrote, “would lead a reasonable observer to conclude that he was endorsing religion.”

Judge Theodore McKee and Judge Maryanne Trump Barry agreed with Fisher’s result but wrote separately to explain their reasoning.

McKee seemed especially troubled by the animosity the flap over prayer stirred up in the school community. In his concurring opinion, he noted that when the matter became public, some students assumed that two Jewish cheerleaders had initiated the complaint against Borden.

In fact, the school district, citing confidentiality concerns, never publicly identified the students who complained. Yet, as McKee wrote, “those cheerleaders were publicly ridiculed by other students at athletic events, and the cheerleading squad was taunted, bullied, and booed.”

A blog run by students at the high school was soon overflowing with hostile messages.

“First they crucify Jesus, then they got Borden fired….Jews gotta learn to stop ruining everything cool,” one message read. Another opined, “Damn Jews….then you wonder why Hitler did what he did back in the day.”

McKee chided Borden’s attorneys for suggesting that some allegations against the coach were based on “hearsay” and “anonymous sources.”

He wrote, “[G]iven the nature of these venomous comments, counsel cannot seriously suggest that the evidence be ignored merely because students and parents who opposed Coach Borden’s policy were not willing to identify themselves and offer direct testimony.”

Barry, in a concurrence, praised Fisher’s lead opinion as “superb” and agreed that school officials had the right to rein in Borden. But she then went on to indirectly criticize the school for allowing Americans United to file an appeal.

“With this litigation hopefully nearing its end,” she observed, “one also hopes that those involved will move forward as a team for the benefit of the young people who look to them for guidance and support.”

Borden’s lead attorney, Ronald J. Riccio, a professor of law at Seton Hall Law School in Newark, N.J., made a stab at keeping the case alive by asking the entire 3rd Circuit Court to rehear the case, a procedure known as an en banc rehearing. On May 15, the court denied the request. Borden’s legal team has one more long shot option: an appeal to the U.S. Supreme Court.

Riccio is being assisted by attorneys affiliated with the Virginia-based Rutherford Institute.

Joining the call for a rehearing, Institute president John W. Whitehead said in a press statement, “If this ruling is allowed to stand, it will mean that high school teachers across the United States will have no free speech or academic freedom rights at all. This undermines a time-honored tradition that has less to do with religion than it does athletic tradition. It’s a sad statement on our rights as Americans that schools are no longer bastions of freedom.”

If the case goes forward, Borden’s backers are likely to portray it as an instance of hostility toward religion. That argument is a little difficult to sustain, in light of the religious organizations that sided with the school district and Americans United.

When the case reached the 3rd Circuit, several religious groups filed a friend-of-the-court brief asserting that Borden was wrong. They include: 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.     

The religious groups took issue with Borden’s claim that his actions were not religious.

“Characterizing Coach Borden’s conduct – bowing his head and kneeling during a prayer exercise – as ‘secular’ is not only wrong as a matter of law and reason,” observes the brief. “It is also deeply insulting to religious adherents. [M]any religions consider bowing the head and kneeling to be core acts of religious expression.”

Religious Right groups responded to the ruling with anger. At Focus on the Family, Stuart Shepherd, who fancies himself a witty social critic, made a sarcastic video in which he was accompanied by an associate dressed as a referee. Whenever Shepherd did anything religious, the referee would blow his whistle. While he took pains to portray Borden as a martyr, Shepherd, not surprisingly, did not mention the kids told to wait in the bathroom or the cheerleaders who were singled out for abuse.

Religious Right groups are claiming the decision is hostile to religion and that the East Brunswick School District is as well. In fact, the district has clear policies on voluntary religious activity by students. In most cases, it is protected.

The guidelines state upfront, “Students have a constitutional right to engage in prayer on school property, at school events, and even during the course of the school day” provided that the prayer is student-initiated and does not “interfere with the normal operations of the school district.”

The policy states that students may pray before lunch in the cafeteria or before a sporting match. But it goes on to say, “Neither the school district nor any representative of the school district (teacher, coach, administrator, board member, etc.) may constitutionally encourage, lead, initiate, mandate, or otherwise coerce, directly or indirectly, student prayer at any time in any school-sponsored setting, including classes, practices, pep rallies, team meetings, or athletic events.”

The policy adds that representatives of the school system may not participate in student-initiated prayer.

Magistro, superintendent of the East Brunswick School District, noted in a media statement that the district was motivated to act to protect the rights of students and their parents.

“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 thereof, can never be used to separate them from their peers and teammates.”

Magistro stressed that the district allows truly voluntary student religious expression. Players, cheerleaders and others, she said, have the right to pray on their own. But they may not be pressured or even subtly coerced to take part.

The last point is important, because it raises an issue that can be easily overlooked in cases like this: fears some players may have that if they don’t pray, they won’t play. Critics of the ruling have asserted that relatively few students complained, but anecdotal evidence indicates that some players kept quiet because they did not want to rock the boat.

Ripples from the decision are already being felt. The day after the ruling, the East Brunswick Home News Tribune quoted Grant Teaff, executive director of the American Football Coaches Association, who estimated more than half of high school football coaches nationwide participate in team prayer.

A local coach in New Jersey, Ben LaSala of Colonia High School, expressed disappointment with the ruling.

“I feel like it’s a blow to me at Colonia,” he said. “[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 before practice.”

Advocates of church-state separation, on the other hand, point out that the ruling breaks little new ground. Coaches, as public school employees and representatives, are not supposed to be praying with students, although it appears that many have apparently been violating the law for a long time.

The Supreme Court made it clear in the school prayer rulings from 1962 and ’63 that teachers, administrators and other school personnel may not lead students in religious worship. No exception is made for sporting events.

In fact, the Supreme Court ruled in 2000 that public schools may not allow allegedly “student-led” prayers over loudspeakers before football games. The high court has always been careful to prevent anything that smacks of religious coercion in the nation’s public schools, whether it’s in the classroom or during school-sponsored events such as graduation and sporting matches.

So why are we still having these battles in 2008? Stephen D. Solomon, director of graduate studies in Journalism at New York University and the author of a recent book on school prayer, Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle Over School Prayer, says the coach’s unique position may have a lot to do with it.

“It’s very difficult for a player to complain,” Solomon told Church & State. “The coach is a powerful figure, determining position and playing time, and clearly there is a subtle coercion inherent in the situation – some players will feel pressure to participate in the prayers or risk crossing the coach, and certainly they’ll think twice about complaining. A coach may not intend this result at all, but perception on the part of a teenage player may be the most important element here.”

AU’s Katskee said it is important to protect players from this type of subtle coercion.

“The bottom line is that all public school activities, including athletics and cheerleading, should be free from religious pressure, direct or indirect,” Katskee said. “No student should ever get the impression that you’ve got to pray to play.”