Ruling shows Board of Ed. made right call from start
Congratulations go to the East Brunswick Board of Education for what turned out to be the appropriate decision when, in August 2006, it chose to appeal a federal court ruling in the Marcus Borden case.

The board had hoped to avoid costs of up to $100,000 to pay Borden's attorney. Indeed, it would be an injustice if local taxpayers had to fork out so much for what amounted to an honest attempt by school officials to interpret federal laws regarding the separation of church and state by telling the football coach to stop participating in team prayers.

The school district initially intervened in Borden's prayer activities in 2005 after some students and parents said they were uncomfortable with the coach's role. Its legal opinion was that Borden's participation was in violation of federal laws. Borden sued, saying the board violated his freedoms and that its policy was unconstitutional. Though he had led the team prayers in the past, Borden now sought to simply bow his head or take a knee while the students prayed before games or at team meals, as is a team tradition.

Borden won his case in a July, 2006 ruling in U.S. District Court, but the school board appealed when it learned of the legal bills a judgemight award Borden's attorney. The board, saying the ruling failed to protect students' rights to be free from religious coercion, took on the pro bono legal representation of the watchdog group Americans United for the Separation of Church and State. The board played its cards right, as a 3rd U.S. Circuit Court of Appeals last week reversed the 2006 ruling and rejected Borden's legal challenge.

The three-judge panel agreed that, given Borden's 23-year history of organizing and leading prayers with players, his actions would be construed by a neutral observer as promoting religion. The lead judge ruled that the case might be different had Borden not had a history of organizing and leading team prayers, though another said his decisionmight be the same regardless of the coach's past.

Though the ruling is a major victory for the school district, it does leave at least one question unanswered: What should Borden or any other coach do while his players pray, if the players decide to do so? As one judge noted, the coach should not be forced to act in a way that would disrespect the players' activity.

"One wonders how a court can dictate, beyond a certain point, what response is permissible, much less how a response would be enforced," one judge wrote. "[School representatives] told the District Court that Borden can bow his head, but he cannot do 'a pronounced bowing of the head.' What is 'pronounced,' and who would decide that question? As defendants also told the District Court, 'The district does not have thought police, and we certainly don't have bow police.'"

Such a question looms large enough that we would not be surprised to see Borden take the case to the U.S. Supreme Court. And perhaps that is where this issue belongs, since the primary goal from the beginning of this case has been to achieve a clarification of the federal laws designed to separate church and state. The school board and Borden each had their own take on those laws, and so far each side has one court in its corner. A higher court decision would decide the matter once and for all, but if it is federal regulations that need to be clarified on behalf of the nation, East Brunswick taxpayers should in no way finance this fight.