On Pigskin and Prayer at Public School

April 18, 2008

by Richard B. Katskee, assistant legal director of Americans United for Separation of Church and State and attorney who argued before the 3rd U.S. Circuit Court of Appeals in Borden v. School District of the Township of East Brunswick

           The Third Circuit’s decision in Borden v. School District of the Township of East Brunswick is a victory not just for the East Brunswick School District, but for its students — and for religious freedom.

            Marcus Borden has been head football coach at East Brunswick High School in New Jersey for the past two-and-a-half decades. During that entire time, he held team prayers. In the locker-room, he’d get down on his knee with the players, have them all bow their heads, and lead a prayer before every game. And at mandatory pre-game dinners, he’d have the students all stand and bow their heads, and then he’d say grace, or else he would appoint a player to do so.

            But then students and their parents started to complain. One parent even called the superintendent of schools — Dr. Jo Ann Magistro — in tears to say that her son, a player on the football team, was upset about Borden’s fostering team prayers; but her son felt that he had to participate because otherwise, he wouldn’t get any playing time. Some cheerleaders’ parents also complained to Magistro, saying that their daughters had felt uncomfortable at a pre-game team dinner when Borden sponsored a prayer.

           Magistro believed that it was her duty to ensure that all students are welcome to play on school teams and participate in school events, and that none feel pressured to pray if they don’t want to. She believed that no student should have to choose between his or her religious beliefs and full-fledged membership in the school community. Magistro also realized that Borden was violating the Establishment Clause, and that as superintendent, she had a legal duty to stop him.

            So Magistro did what any responsible superintendent would do: She issued a policy confirming that students have the right to pray voluntarily, where and when they please, but stating that teachers, coaches, and other school employees may not “encourage, lead, initiate, mandate, or otherwise coerce, directly or indirectly, student prayer at any time in any school-sponsored setting,” nor may they participate in it.

            When Borden received the policy, he initially resigned his position, refusing to coach if he couldn’t continue having team prayer. But then he rescinded his resignation so that he could sue the school district.

          It was at about that time that things got really ugly. When word spread that some cheerleaders had complained about Borden’s team prayers, other students immediately assumed that the only ones who could possibly be to blame for speaking out against the coach were the two Jewish students on the cheerleading squad. So the other students ridiculed and bullied the cheerleaders at games. They also created a thread on a student blog called “Jewish Cheerleaders who suck!!!” and posted harassing entries, including these:


                     “First they crucify Jesus, then they got Borden fired . . . . Jews gotta learn to stop  ruining everything cool.”

                     “The jew is wrong. Borden is right. Let us pray.”

                     “d**n jews . . . then you wonder why hitler did what he did back in the day.”

                     “MAYBE if [Borden] held a gun to the jjjjewwws head and was like b*tch get on ur knees and pray to jesus!! then that might be breaking the law...ehhh maybe not! . . . just suck it up if u don’t fu*king like whats going on in america then GO THE FU*K BACK TO YOUR COUNTRY AND STAY THERE AND PRAY . . . .”

                     “Heil Hitla!!! sieg heill.”

            After rescinding his resignation, Borden completed the season without holding team prayers, then filed suit. Explaining that as a coach, he believes team prayer to be critical for building team unity, Borden alleged in his Complaint that, in the future, he would no longer lead the prayers; instead, he would silently “take a knee” and bow his head while the students prayed. The following spring, as the litigation progressed, Borden directed the student captains to poll each of the football players to see who wanted to continue the prayer traditions the next season, and had the captains report all the votes to him. Unsurprisingly, none of the team members spoke up against the prayers — not even the player whose mother had complained about them to the superintendent.

            On summary judgment, the district court sided with Borden. The court took Borden at his word that he would no longer lead team prayers, but would instead silently bow his head and “tak[e] a knee as a sign of respect for his players’ actions and traditions.” In an oral ruling from the bench, never followed by a written opinion, the district court discovered a smorgasbord of novel federal and state constitutional rights that gave Borden license to disobey the school district’s policy against its employees’ leading or participating in prayer with students. The court also struck the policy down as vague and overbroad, finding that it was “unfair to ask a coach to do nothing” while students are praying, and expressing the view that it would put the coach in an “untenable position” to forbid him to participate in team prayer.

            The effect of the district court’s decision was that Borden was free to bow his head and “take a knee” with the students for team prayer, and that the school district was powerless to act on the students’ complaints that the prayers made them feel uncomfortable and unwelcome at school activities. The students who didn’t want to pray would just have to go along to get along.

            That’s when Americans United for Separation of Church and State got involved. We represented the school district in the appeal to the Third Circuit pro bono, because we believed that the trial judge’s decision was harmful to religious freedom, and that the East Brunswick superintendent of schools had acted admirably in trying to try to protect the students on the football team from feeling that they had to pray if they wanted to play. We also believed, as the superintendent did, that school districts have a duty to comply with the Establishment Clause — and to ensure that all their teachers and coaches comply as well.

            In a 70-page slip opinion issued on April 15, the Third Circuit agreed. Writing for the court, Judge D. Michael Fisher (who took the bench in 2003) held that the school district had the authority to issue its policy prohibiting teachers and coaches from leading or participating in prayer with students; that Borden had no constitutional right to disobey; and that whatever Borden’s subjective purpose might be for wanting to bow his head and take a knee for team prayer, a reasonable observer would infer, in light of his long history of leading the prayers, that Borden was unconstitutionally endorsing religion.

           Judge Fisher’s opinion noted that while “taking a knee in a huddle to discuss strategy is a gesture well known to football gurus as being part of the game,” Borden’s history of taking a knee for prayer changed the meaning of that gesture. The opinion also concluded that because Borden is a school employee, the school district could not avoid running afoul of the Establishment Clause by disclaiming his conduct. So the policy forbidding teachers and coaches to participate in student prayer was “necessary for the School District in order to avoid Establishment Clause violations.” Judge Fisher suggested, however, that because history and context matter in determining whether official conduct violates the Establishment Clause, a different result might be warranted for a coach who silently bows and takes a knee during student prayer but has no history of sponsoring that prayer.

            Judge Theodore McKee joined the opinion, but wrote a separate concurrence arguing that even without a history of leading prayers, a coach who bows and takes a knee for team prayer might well be unconstitutionally endorsing religion. Judge McKee also reasoned that Borden’s “players were put in the untenable position of either compromising any opposing beliefs they may have had or going on record . . . as opposing their coach and perhaps a majority of their teammates,” and that this “subtle (albeit unintentional) coercion to participate in [prayer] despite disagreement or discomfort with it” raised constitutional problems.

           Judge McKee also pointed to the anti-Semitic attacks on the cheerleaders to show why it was important to for the public schools not to endorse religion. He explained that the court of appeals’ decision upholding the school district’s policy would “help to ensure the continued vitality of the Establishment Clause as well as the rights of all to worship as they please.”

          Judge Maryanne Trump Barry also joined Judge Fisher’s opinion but filed a concurrence. She agreed that the school district had the authority to issue and enforce its policy and that Borden did not have any constitutional right to disobey, but she disagreed with the conclusion that Borden’s silently bowing and taking a knee for team prayers in the future would violate the Establishment Clause.

            The Borden decision does not make any new law. The Supreme Court held in 2000 that prayer at high-school-football games violates the Establishment Clause because it endorses religion and unfairly forces students either to participate in unwanted religious rituals or to absent themselves from the games (which are for many an important part of the high-school experience). Even before that, the Fifth Circuit had held that a public-school coach’s participating in team prayer unconstitutionally endorses religion. And the federal courts have consistently recognized that public-school teachers and coaches don’t have constitutional rights to disobey school-board policies about how to run classes and interact with students.

            But while the decision may not break new legal ground, it underscores two important points. First, being a high-school student is hard enough without feeling the added pressure to conform your religious practices to those of a teacher, coach, or fellow students — or suffering harassment because your religious beliefs might be different than theirs. And second, there are still conscientious school boards and administrators out there who take seriously their legal duty to obey the First Amendment — and their moral duty to protect all students’ religious freedom. Those officials deserve praise, not lawsuits, when they stand up for the rights of students to pray, or not, as they choose.