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http://www.thnt.com/apps/pbcs.dll/article?AID=/20060726/NEWS/607260437/1001
http://www.thnt.com/apps/pbcs.dll/article?AID=/20060726/NEWS/607260437/1001
Coach had a prayer
[FONT=Arial,Helvetica,sans-serif]East Brunswick's Borden OK'd for "taking a knee"
[/FONT] Home News Tribune Online 07/26/06
By GREG TUFARO
STAFF WRITER
gtufaro@thnt.com NEWARK — In a court ruling with national implications, East Brunswick High School football coach Marcus Borden won his lawsuit against the school district yesterday, and will now be permitted to participate in team prayer.
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U.S. District Judge Dennis Cavanaugh upheld every element of Borden's complaint in federal district court, stating the school district violated the coach's constitutional rights by prohibiting him from silently bowing his head and "taking a knee" with East Brunswick players while they engaged in student-initiated, student-led, nonsectarian pregame prayers.
Borden can now stand and bow his head while players say grace in the cafeteria before pregame team meals and can now "take a knee" with players as they pray in the locker room before taking the field.
Cavanaugh's ruling gives other high school football coaches across the state a strong legal precedent to emulate Borden's actions, according to attorney John Whitehead, president of the Virginia-based Rutherford Institute, a civil liberties organization which filed an amicus brief on Borden's behalf.
"This not only clears things up for myself," Borden said, "but I think it helps the coaches in America to have a better understanding as to exactly what participation is and what we are allowed to do as coaches during student-led prayer. I certainly hope this helps all the coaches out in New Jersey who had restrictions placed upon them."
Borden resigned on Oct. 7 in protest of the district's school-prayer policy. Upon his attorney's advice, the coach rescinded that resignation 10 days later, agreeing to comply with the district's guidelines while simultaneously keeping alive a legal challenge.
Cavanaugh called East Brunswick's directives, which stated that "representatives of the school district cannot participate in student-initiated prayer," overly broad and vague. He said they violate Borden's 1st and 14th Amendment rights of free speech, academic freedom, association and privacy.
"It is a very important victory for public school teachers and coaches," said Borden's attorney, Ronald J. Riccio, a constitutional law expert who represented the coach pro bono on behalf 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."
More than 50 percent of high school football coaches nationwide engage in team prayer, according to Grant Teaff, executive director of the American Football Coaches Association. Some, including Brick Township High School's Warren Wolf, a 58-year veteran and New Jersey's winningest high school football coach, received directives to stop praying with their players after Borden's case garnered national attention nine months ago.
"Many of us were forced to give up doing what we've been doing for many, many years," Wolf said, "and it really took every one of us back. I think this is something that Coach Borden stood up for and he not only represented himself, he represented all of us coaches who believe in the same things. I think it's a victory for all of us and all of the people who believe that prayer and God are things that you don't have to shy away from."
Whitehead said Cavanaugh's ruling will have national implications.
"Every athletic department in the country is going to know about this case," he said. "This is a great ruling. I think it's very important that we protect the rights of coaches, especially to at least be part of team activities. When you have prayer, this brings teams together. They play better and they want to do this, so why can't the coach be part of it? I just don't see how any court is going to rule this is a violation of the law."
During oral arguments, School Board attorney Martin Pachman failed to convince Cavanaugh that Borden's requests to silently bow and "take a knee" were in violation of the First Amendment's establishment clause, which prevents the government or its agents from promoting or endorsing religion.
"I have no reaction whatsoever," Pachman said outside the courtroom. "That's why (Cavanaugh) wears the black robe."
Barry Lynn, executive director of Americans United for the Separation of Church and State, vehemently disagreed with Cavanaugh's ruling, which gives Borden permission to continue a time-honored tradition. For the past 23 years, Borden occasionally led his players in pregame prayer at team dinners and in the locker room before kickoff. Those nonsectarian prayers generally offered thanks or asked God for protection from injury.
"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," Lynn said in a telephone interview from his Washington, D.C., office yesterday. "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.' "
Cavanaugh said yesterday he could understand how Borden's actions "possibly could be looked at with some religious overtones" but called East Brunswick's pregame invocations "secular in purpose" rather than religious. Cavanaugh said the state "shouldn't be fostering religion," but it also "shouldn't be keeping people from it."
Cavanaugh interrupted Pachman six times during his 20-minute oral argument, stating at one point: "I'm having a real difficult time finding out what's wrong with the respect that's being shown (by Borden)." Cavanaugh drew laughter from the courtroom when he asked Pachman, "What if (Borden) is standing there and decides to look at his shoes? Would he be bowing his head?
"I don't think it's fair to ask a coach to do nothing. I find nothing wrong with (Borden) remaining silent and bowing his head."
East Brunswick quarterback and team captain Randall Nixon said Borden's lawsuit, filed last November, and the events that preceded were a distraction to the team. Nixon was relieved to learn yesterday that the coach can now pray with his players.
"I think having him pray with us has just been a tradition for such a long time and that's the way everybody wants it to be," Nixon said. "I think it will be good to have a sense of normalcy back with the team. We plan to continue praying before every game. Now it's going to be a plus that we are going to have Coach Borden again, and we are looking forward to it."
Recipient of USA Weekend magazine's 2003 national Caring Coach of the Year award and the AFCA's 2004 national Power of Influence award, Borden has maintained since October that he was taking "a stand for every high school football coach in America."
Borden sat stoically throughout yesterday's hearing, showing emotion for the first time in the form of a grin only after Cavanaugh read his opinion. When Cavanaugh finished, schools superintendent Jo Ann Magistro, School Board president Holly Howard and district spokeswoman Trish LaDuca left the courtroom without speaking to Pachman.
LaDuca said East Brunswick Public Schools will not appeal. She issued a press release last night that said the district accomplished its goal in court.
"As a result of the proceeding . . . Mr. Borden conceded that he will no longer pray with his students either at the pasta dinners or in the locker room," the release stated. "He will, however, be permitted to bow his head or take a knee with his players, not in prayer, but as a sign of respect. According to Dr. Magistro . . . the district has accomplished its goal, which was to get direction from the court as to what Mr. Borden could and could not do."
Riccio, who described the case as a "long, difficult and contentious lawsuit," said the district's release does not accurately reflect Cavanaugh's ruling.
"If that's what the district needs to save face, then so be it," Riccio said. "Coach Borden's motion for summary judgment was granted, the district's motion for summary judgment was denied, and every element of relief requested by Coach Borden was granted."
Riccio unsuccessfully asked Pachman to settle the dispute a month before filing suit on Borden's behalf. Under state law, as the prevailing party in a lawsuit, Riccio is now entitled to ask that the court order East Brunswick Public Schools to pay his costs and legal fees. Riccio said he is considering making such an application.
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