Coach can't bow head, take knee as team prays Judges say Borden's history would signal religious endorsement BY VINCENT TODARO Staff Writer East Brunswick High School football coach Marcus Borden is seen kneeling with his players in a photo submitted in court papers by the East Brunswick school district. An appeals judge wrote of the photo: "It would be neither surprising nor unreasonable if [an objective] observer were to conclude that this coach is praying with his team, perhaps even that he is leading the team in prayer." EAST BRUNSWICK - A federal appeals court has sided with the school district in prohibiting football coach Marcus Borden from participating in team prayers, but the legal decision may not be the last in a case that has received national media attention. Borden's attorney, Ronald J. Riccio, is expected to petition the U.S. Supreme Court to rule on the matter. For now, Borden will not be permitted to "take a knee" or bow his head while his players pray at team meals or before games, as he had sought to do when he took legal action against the school district in November, 2005. Borden said the school district's policy prohibiting faculty from participating in student-initiated prayer was unconstitutionally overbroad and vague, and violated his federal and state constitutional rights to freedom of speech, academic freedom, freedom of association and due process. A U.S. District Court judge agreed with Borden in a July 2006 ruling, but the school district appealed, and last week a three-judge panel in the U.S. Third Circuit Court ofAppeals in Philadelphia overturned that ruling. The appeals court said Borden's silent participation in the prayers violates federal laws, given his prior history of organizing and at times leading the prayers himself. "... When viewing the acts in light of Borden's 23 years of prior prayer activities with the East Brunswick High School football team, a reasonable observer would conclude that Borden was endorsing religion when he engaged in these acts," the judges wrote in their April 15 decision. The judges each gave their own opinions, with one, Theodore McKee, writing that even if Borden did not have a history of leading team prayers, an objective observer would likely view his actions as an endorsement of religion. School officials said the appeals court decision accomplished their stated goal of protecting their students' rights. "I am very pleased," said Board of Education President Todd Simmens. "The decision holds that our policy is reasonable and within constitutional bounds." Simmens, himself an attorney, said he always felt the question had already been "pretty well settled" by the courts, and that the appeals court decision reflects that history. The Borden case gained national attention in 2005 after parents complained about Borden's involvement in team prayers and the school district intervened, directing him to refrain from participating. Borden resigned the night he received guidelines regarding the school district's policy, but withdrew his resignation shortly thereafter and agreed to abide by the policy while fighting it in court. U.S. District Court Judge Dennis Cavanaugh would find no legal reason to prohibit Borden from silently bowing his head or taking a knee as a sign of respect to his players' actions and traditions. Precluding him from doing so, it ruled, would violate his rights. The appeals court judges saw it differently. With regard to Borden's right to academic freedom, for example, the judges ruled: "In the case before us, Borden concedes that the silent acts of bowing his head and taking a knee are tools that uses to teach his players respect and goodmoral character. Thus, by his own admission, his coaching methods are pedagogic. As a result, he is acting as a proxy for the school district, and the school district may choose both how its students are taught and what its students are taught. Here, the school district ... determined that Borden's pedagogic methods were inappropriate." Further, the judges decided that Borden's history "signals an unconstitutional endorsement of religion," as he had previously orchestrated pre-meal grace and had a chaplain conduct the prayer. After school officials intervened, he had a chaplain write the grace and selected seniors on the team to recite it. Borden also led prayers himself in the locker room before games for 23 years. "The inquiry is not whether Borden himself intends to endorse religion, but whether a reasonable observer, with knowledge of the history and context of the display, would conclude that he is endorsing religion," the judges wrote, saying that his acts "cross the line and constitute and unconstitutional endorsement of religion." The panel acknowledged that the case was difficult to decide, however. The judges "do not disagree that bowing one's head and taking a knee can be signs of respect," Judge Barry McKee wrote, adding that it is only Borden who cannot do so, and not necessarily other coaches. McKee said he did not know what response from Borden would be permitted during a student led prayer. "Surely, he would not be required to keep his head erect or turn his back or stand and walk away,"McKee wrote. "Any such requirement would evidence a hostility to religion that no one would intend." Regarding legal fees, the panel ruled that each side is responsible for its own costs, a decision that represents something of a victory for the school district. Under the previous decision, the school district would have to pay Borden's attorney fees, which could have amounted to nearly $100,000. Though Riccio had offered his services to Borden pro bono, that had no effect on the decision to award legal costs in a civil rights case. The school district, in appealing the case, always had pro bono representation, courtesy of the watchdog group Americans United for the Separation of Church and State. It was not immediately clear how much the school district had incurred in costs for assistance in the case from its own attorney, Martin Pachman. Regardless, the legal battle may not be over. Riccio, who did not return phone calls for this story, told The New York Times he planned to appeal the case to the Supreme Court. "One of the things that is clear from the Third Circuit opinion is that public school coaches who do not have a history of praying with their players can bow their head and take a knee," Riccio told the newspaper. "So it creates a bit of an ambiguity." Simmens said he was aware of Riccio's comments, but said there is only a small chance the court will hear the case. He noted that three appeals court judges who came from different backgrounds and ideologies still agreed on the ruling. "I don't think the Supreme Court will hear it," he said, noting that the court receives thousands of petitions each year but hears fewer than 100 cases. He said if there was a conflict between two circuit courts, or if the highest courts of two states disagreed, the court would be more inclined to hear the Borden case. "But I think the Third Circuit ruling is consistent with other courts' decisions," he said. "And the Supreme Court's reviews are discretionary." Superintendent of Schools Jo Ann Magistro said the school district "pursued this case to protect children who could not protest pressure to participate in religious activities at school events." The ruling accomplished that goal, she said. "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 said. "I want to make sure the community understands that our students will continue to be allowed to voluntarily pray when, where and as they wish," she said. "This decision deals only with district employees' ability to participate in religious activities with students." The Rev. Barry Lynn, executive director of Americans United Against the Separation of Church and State, said the appeals court decision affirms that public schools have the right and responsibility to protect students from religious coercion.