School board fights ruling in Borden case

BY VINCENT TODARO
Staff Writer

The East Brunswick School District will receive pro bono legal help as it appeals the recent court decision that allows football coach Marcus Borden to silently take part in team prayers.

School officials, in a statement last week, said the ruling does not recognize the district's right to regulate the conduct of its employees, and ignores students' rights "to be free from religious coercion and messages of school endorsement of religion."

The Board of Education's attorney, Martin Pachman, is expected to work on the appeal with lawyers from Americans United for Separation of Church and State, which is offering its services free of charge, according to the group's spokesman, Rob Boston.

In July, U.S. District Court Judge Dennis Cavanaugh ruled that Borden could bow his head and take a knee while his players engaged in prayer, a long-standing team tradition. The district had banned Borden from doing so last fall, saying his actions violated laws regarding the separation of church and state because he was participating in the prayer sessions. Borden's subsequent lawsuit against the district claimed the district's policy was a violation of his rights of freedom of speech and religion.

When the ruling was issued, the board initially expressed pleasure that the litigation was resolved. Superintendent of Schools Jo Ann Magistro said in a July 26 statement that "the district has accomplished its goal, which was to get direction from the court as to what Mr. Borden could and could not do. We now have that direction and will move forward from here."

But district officials later learned that as a result of the ruling, the district could have to pay Borden's attorney, Ronald Riccio, close to $100,000 in legal fees. Riccio had offered his services to Borden pro bono, but that has no effect on the judge's decision to award legal costs in a civil rights case.

In a statement issued last week, the district said financial considerations were a "critical factor" in the decision to appeal.

"Mr. Riccio, who offered his services to Mr. Borden pro bono, has requested that he be remunerated nearly $100,000 by the board for services rendered to his client. Until Riccio's intent to seek compensation became known, the board had incurred no cost with regard to this legal issue."

The school district's insurance broker covered the $48,000 in legal fees owed to Pachman.

"A win at the Court of Appeals will ensure that the district incurs no costs whatsoever at either stage of litigation," according to the board's statement.

Riccio said he views the district's decision to appeal as a vendetta against Borden.

Regarding the legal fees, he said that when Cavanaugh made his decision, he entered an order for the district to pay Riccio's legal fees and Borden's court costs, which were about $3,000. Although attorneys usually ask the court for a specific amount, Riccio said he did not.

"It's up to the court to decide," he said.

Before the district filed the appeal, Riccio said, he sought a compromise regarding the legal fees owed by the board. He said he spoke with Pachman, who told him $25,000 in legal fees was reasonable. But Riccio responded that he spent about 200 hours working on the case, and thus would accept no less than the same amount that Pachman was paid. Pachman told him he did not know what that was, because it was lumped in with his other work for the board.

Riccio said Pachman never got back to him about the amount.

Not wanting to miss the deadline for filing affidavit with the court on his legal fees, Riccio went ahead and did so. He said that when he works through his law firm, he charges between $400 and $600 an hour. However, when he handles cases such as this on a pro bono basis, there is no set fee.

"I never took this case to collect fees," he said.

If the district loses the appeal, Riccio said he stands to gain more legal fees.

Regarding the July court ruling, Boston said it conflicts with "just about every other ruling dealing with school prayer."

Americans United for the Separation of Church and State specializes in this type of law, and has attorneys who "know this law inside out, upside down," he said.

Over the years a number of teachers and others have argued that taking part in prayer is a free speech right, he said. But courts have ruled against that, and the job of promoting religion falls on parents, not public schools, he said.

"We'll argue the school's policy was a reasonable effort," Boston said.

The district feels that what Borden wants to do, take a knee and bow his head, is a thinly veiled attempt at taking part in prayer and endorsing one religion over another. Boston said Riccio's argument is "unusual" in that he is saying he only wants to acknowledge the prayers.

The Board of Education sought help from outside counsel before making the decision to appeal, according to the statement. Patricia LaDuca, district coordinator of community relations and programs, said the board actually consulted with a number of attorneys before teaming up with Americans United for the Separation of Church and State. The outside attorneys told the board the court's decision was flawed because it failed to acknowledge the school district's right to regulate the actions of its employees.

"The July 25, 2006, decision, which allows Coach Borden to participate in team prayer, does not put the rights of the students first, nor does it protect the constitutional rights of every one of the nearly 9,200 students in East Brunswick's very diverse population," the statement says.

Until a decision is reached, the lower court decision allows Borden to bow his head and take a knee with the team during team prayers, according to the board's statement.