Borden v. East Brunswick school District, No. 05-5923 (D. N.J. July 25, 2006)

In an unpublished bench decision, a New Jersey federal district court has ruled that a high school football coach’s bowing of his head and kneeling during player-initiated pre-game prayers does not constitute an Establishment Clause violation. The court also held that school district directives that prohibited the coach from engaging in those gestures violated his First and Fourteenth Amendment rights to free speech, free association, and academic freedom. Marcus Borden has been head varsity football coach at East Brunswick High School (EBHS) for over 23 years. The team had a tradition of the coach participating in a team prayer before the pre-game meal and again before the team took the field. When some parents of EBHS students complained about the prayers and threatened litigation, East Brunswick School District (EBSD) restated its school prayer policy. EBSD officials issued several directives warning Mr. Borden that his participation in student-initiated and led prayer, including standing and bowing his head during the pre-game meal prayer and kneeling during the prayer before the game, would be considered insubordination and could lead to his discharge. Mr. Borden initially resigned as coach, but returned and agreed to abide by the policy while he brought a lawsuit. His suit alleged that his First and Fourteenth Amendment free speech, free association, and academic freedom were being violated.
       After hearing evidence and argument, the court considered each party’s respective motion for summary judgment. Mr. Borden argued that merely bowing one’s head and kneeling while the team prays does not amount to participation and, thus, does not violate the Establishment Clause. He also contended that prohibiting him from engaging in such gestures infringed on his rights to free speech, free association, and academic freedom. EBSD countered that engaging in such conduct during student-initiated prayers sends a message of school endorsement of the religious message, in violation of the Establishment Clause. The district argued that coaches and other school staff are perfectly able to bond with students in non-religious ways and that the coach’s actions would have a coercive effect on players who choose not to participate.
       After reviewing the three Establishment Clause tests, i.e., the Lemon test, the endorsement test, and the coercion test, employed for determining if a governmental action violates the Establishment Clause, the court agreed with Mr. Borden that the test best suited to circumstances of the case was the endorsement test, because the question raised was 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. The court framed the legal issue under the endorsement test as whether a reasonable, objective observer would view "head bowing" or "taking a knee" as government endorsement of religion. The court found that neither gesture amounts to endorsement, but instead merely signals respect and solidarity with the team. It rejected EBSD’s coercion argument, noting that the coach could retaliate against players who choose not to participate in prayer regardless of whether he himself participates. The court concluded that head bowing and kneeling would not be viewed by an objective observer an endorsement of religion and that EBSD’s directives were overly broad and vague.

[Editor’s Note: Following the ruling John Whitehead, president of the Rutherford Institute, told the Home News Tribune that the ruling would provide high school football coaches across the state with a precedent to emulate Mr. Borden. "It is a very important victory for public school teachers and coaches," said Mr. Borden's attorney, Ronald J. Riccio of Seton Hall Law School's Center for Social Justice. "It reaffirms that government can't be hostile to religion, that they have to remain neutral and that not all things that partake of religion are impermissible or in violation of the establishment clause." Barry Lynn, executive director of Americans United for the Separation of Church and State, disagrees. "I just think it's wrong because it misconstrues existing law and it fails to recognize the long tainted history of this coach's effort to promote prayer in public school," he said. "That (ruling) just sounds quite bizarre to me because if participating in prayer, getting on your knee when a Christian prayer is being prayed, is not endorsement of the prayer, then I don't know what could possibly be an endorsement of the prayer short of (saying) ‘Hallelujah.’" The article and background on the dispute are available below.]