After East Brunswick, N.J., School Superintendent Jo Ann Magistro discovered last fall that a long-time high school football coach had been actively involved in praying with his players, she realized the school district was confronted with a hot-button issue she had to tackle.
“Students and parents had approached me with concerns about the football coach’s actions,” Magistro said. “I knew that it would be difficult for them to confront the coach. It was the school district’s responsibility – not the students’ – to stop a school employee from engaging in unconstitutional behavior.”
Magistro, who was appointed superintendent in 2003 (and has been a district administrator for 27 years), asked East Brunswick Board of Education attorney Martin R. Pachman to research the law governing religion and the public schools. Days later, he reported that Coach Marcus Borden would need to cease his promotion of religion.
Federal court jurisprudence, Pachman said, allows students to engage in voluntary prayer and other religious activities, but bars school officials and faculty, including coaches, from participating. For the majority of his more than 20 years as the East Brunswick High School football coach, Borden had been actively involved in praying with his players.
Indeed, for many of those years, the coach had led his team in pre-game prayer, which included calling the team together, kneeling and holding hands with the players and reciting Christian prayer.
Borden had also participated in pre-game dinner prayers with his players, which eventually included other coaches, staff, cheerleaders and invited guests. For many of the pre-game meals, Borden allowed local religious leaders to attend and lead his team in prayer. Eventually Borden tweaked that practice by selecting a student to give the pre-meal prayer.
Magistro knew she was obligated to act, telling Church & State that it was the school district’s responsibility to “protect the rights of all the students.”
The superintendent, with the support of the Board of Education, was determined to put a stop to Borden’s ongoing, but blatantly inappropriate, conduct. The coach was ordered to stop imposing his religious beliefs on his players. But he remained obstinate and filed a federal lawsuit against the school district.
Magistro and school board members were dismayed this summer when a federal judge sided with Borden’s audacious argument that he had a constitutional right to participate in religious activities with his players.
School officials were clearly worn out by the controversy, which had roiled the community and drawn national media coverage. Shortly after U.S. District Judge Dennis M. Cavanaugh issued an oral ruling in favor of Borden, a school district official told a local newspaper that the district probably would not appeal.
But in late August, after consultation with Americans United for Separation of Church and State, the East Brunswick Board of Education decided to take the issue to the 3rd U.S. Circuit Court of Appeals. Americans United offered to represent the school board for free, and AU Assistant Legal Director Richard Katskee, in a presentation before the school board in late August, laid out reasons why the fight should go on.
“We felt strongly that the federal judge’s ruling was way off the mark on religious matters in the public schools,” said Katskee. “The ruling flies in the face of long-standing precedent that bars public school officials from participating in religious activities with their students. If allowed to stand, the ruling is likely to be cited by other school officials and teachers who are bent on infusing the curricula with religious teachings.”
As Katskee told the school board, Religious Right organizations are already touting the judge’s ruling as a victory for school officials who want to discuss their religious beliefs in the classroom. It was not inconceivable, the Americans United attorney told the board, that a teacher would lecture on “intelligent design” or other variants of creationism during biology class and cite Cavanaugh’s ruling as justification.
Borden’s participation with his football team in prayer before games and at team meals – and the ensuing litigation over the practice – divided the increasingly diverse community.
The coach did not take kindly to the school district’s demands that he discontinue his constitutionally dubious activities. In fact, he resigned his position last fall shortly after Magistro told him that he must stop.
Borden was quick to cast himself as the victim of heavy-handed public school officials, telling a local New Jersey television news outlet that he did not believe his practices had violated anyone’s rights.
“I’m very disappointed,” he said. “I believe that I made the right decision. I believe I made a decision based on principle. I believe that’s who I am.”
Borden’s supporters, many of them football players, rallied to his defense and attacked those suspected of raising concerns. Reports surfaced in local media of numerous East Brunswick High students who had been harassed by their peers and others when they complained or were suspected of complaining.
Magistro was angry, telling The Asbury Park Press that her concern was for “the students who have come forward and expressed to their parents an uncomfortableness or questioned their teacher or their parents about what is constitutionally correct….”
“I respect Coach Borden and his principles,” she explained, “but the kids who came forward are not being treated with the same respect. They have principles also and they have feelings, but instead they are being taunted now.”
It was not long before Borden changed course. About a week after quitting his job, he told the East Brunswick Board of Education that he was rescinding his resignation. According to the Associated Press, he said he did not want “anybody to think that I backed down on them.”
Apparently Borden’s reversal was due in part to legal strategy. The coach had retained a local attorney who told the AP that potential litigation rested on Borden remaining a district employee.
“You can’t fight the fight unless you’re in the ring,” said Ron Riccio, Borden’s lawyer and a former dean of Seton Hall University’s law school. “He is making sure that his ability to challenge the district’s policy remains alive. You can’t challenge something if it no longer injures you.”
Litigation would soon follow. In November, the coach filed a lawsuit against the East Brunswick School District arguing that his constitutional rights were violated when he was prohibited from bowing his head and kneeling during team prayers.
Pachman, the board’s attorney, told the media he found Borden’s argument dubious.
The school district lawyer had reason to regard Borden’s lawsuit as groundless.
Time and again, the federal courts have ruled that public schools must not sponsor religious activities. Citing the First Amendment principle of church-state separation, they have invalidated school-organized prayer, Bible readings and other forms of religious worship.
According to Supreme Court precedent, public schools are places where all students of various faiths and none must feel welcome and that, therefore, school officials and faculty must not do anything that would give students, parents or the community the appearance of promoting religion.
In 2000, the high court struck down a Texas high school’s practice of allowing Christian prayer to be recited over the public address system before football games. In that ruling, Justice John Paul Stevens, citing precedent, concluded that school-sanctioned religious activity runs afoul of the First Amendment.
Pachman and the school board were stunned by Judge Cavanaugh’s ruling, which he issued from the bench in late July. The judge did not produce a written opinion, but said that the district had violated the coach’s constitutional rights by barring him from praying with his players.
“I was disappointed by the judge’s action,” Magistro told Church & State. “It simply made no sense in light of longstanding cases. It centered solely on the coach’s rights and ignored the rights of the students.”
The Rev. Barry W. Lynn, Americans United executive director, was also taken aback by the ruling, telling the Home News Tribune that the judge had misconstrued constitutional law.
Lynn described the decision as bizarre, telling the newspaper that “if participating in prayer, getting on your knee when a Christian prayer is being prayed, is not endorsement of the prayer, then I don’t know what could possibly be an endorsement of the prayer short of [saying] ‘Hallelujah.’”
Despite the prospect of a prolonged, contentious battle, Magistro said she and the school board are convinced they are doing the right thing for the students and parents who have raised objections to the coach’s religious activities.
“It is our responsibility to support those who cannot speak up themselves,” Magistro said.