2007-03-22 / Front Page
Appeal of Borden case argued in court papers
E.B. board says coach's gestures amount to religious endorsement
BY BRIAN DONAHUE
Attorneys representing the Board of Education say that when football coach Marcus Borden takes a knee or bows his head during team prayers, he is engaging in a religious act.
And in doing so while serving in an instructional capacity, Borden lacks First Amendment protection, according to legal directors for Americans United for the Separation of Church and State, a Washington, D.C.-based watchdog group representing the school district in its appeal of a federal court ruling that upheld Borden's legal arguments.
The ruling last July by U.S. District Court Judge Dennis Cavanaugh said it is not an endorsement of religion for Borden to bow his head or take a knee while his players pray before games or at team meals. Cavanaugh agreed with Borden that the school district violated Borden's First and 14th Amendment rights to free speech, free association and academic freedom in October 2005 when the district ordered him to cease the activities.
Borden, who coached his 24th season at East Brunswick High School last fall and is returning next season, argues through his attorney, Ronald J. Riccio, that he is engaging in secular acts and that the team prayers are both student-initiated and student-led.
The school district argues, however, that Borden's actions ignore students' rights to be free from religious coercion and messages of school endorsement of religion.
In its most recent legal briefs filed in the U.S. 3rd Circuit Court of Appeals in Philadelphia by Americans United attorney Richard B. Katskee, the Board of Education argues that for 23 years Borden showed a determination to maintain the team prayers and his involvement in them.
Borden was told in 1997 to stop having clergy-led prayers, and he then had students lead them or led the prayers himself, according to court documents. This practice continued until 2005, when parents of students reportedly complained about the prayers, resulting in the district's directive that he stop them entirely. Borden then sued the district while obeying its policy.
"History shows that Borden has been simply reaching for any way to maintain his religious activities," Katskee wrote in a brief filed last week, urging that the court focus on Borden's career instead of just his activities in the 2006 season.
Cavanaugh, in his bench decision last year, said the question is not whether the coach and his team should be allowed to pray, but whether the coach should be allowed to be present and engage in symbolic gestures while the team prays. Doing so, the judge ruled, is merely a signal of respect and solidarity with the team, not an endorsement of religion.
Katskee disputes that the prayers were student-initiated even in 2006, when Borden reportedly arranged for a vote among team members on whether to continue the tradition, which the players supported unanimously.
"Only the most myopic view of history would support the notions that Borden's bowing and kneeling during prayer are secular acts, or that the players acted independently and without school sponsorship when they voted, at Borden's direction, to continue a school tradition," Katskee wrote.
Riccio has argued in court papers that the school district has overstepped its authority by suppressing the coach's constitutional rights, seeking to restrain "bodily movements, personal autonomy, privacy, thoughts, wishes and desires."
Katskee counters that the district's policy regulates Borden's conduct, not his thoughts, wishes or desires.
"Borden can pray privately, even during school hours. What he cannot do is lead, encourage or participate in team prayer," he wrote.
Regarding the meaning of "participation," Katskee cites a 1995 decision in a federal appeals court in arguing that if school employees, while acting in their official capacities "join hands in a prayer circle or otherwise manifest approval and solidarity with student religious exercises, they cross the line between respect for religion and endorsement of religion."
Riccio last month filed a motion to have the appeal dismissed, arguing that the case is moot because the 2006 season had ended and that it is not known whether future football teams will choose to continue the prayer tradition.
Katskee responded in part that the past litigation was not limited to the last season, and that the school district has "an ongoing injury" due to the court ruling forbidding it from stopping teachers to take part in student prayer.
Riccio described his motion to dismiss as an issue of jurisdiction, and that he had an obligation to inform the court of the appeal's so-called mootness. He said the motion should not be taken to mean that he would like to see the appeal dismissed.
"We really would prefer for the appeal not to be dismissed, because we feel we have a very strong case based on the merits," Riccio told Greater Media Newspapers.
Riccio expected to file a response to the district's latest brief tomorrow.
The school district has acknowledged that financial considerations were a factor in its decision to appeal the case, because it could have to pay Riccio close to $100,000 in legal fees based on the initial lawsuit, even though Riccio offered his services to Borden pro bono.
Riccio said this week it could not be known what the school district could expect to face in legal fees should it be unsuccessful in its appeal.
"It would be up to the court in its discretion," he said.
Americans United for Separation of Church and State is representing the school district free of charge.