2009-03-11 / Front Page

Supreme Court will not hear football prayer case

BY BRIAN DONAHUE Staff Writer

After four years of legal wrangling and national attention, East Brunswick High School, Middlesex County, football coach Marcus Borden's fight to participate in team prayer has apparently come to an end.

On March 2, the U.S. Supreme Court rejected Borden's petition to hear the case, leaving the legal victory in the hands of the East Brunswick Board of Education, which in 2005 ordered the veteran gridiron coach to stop praying with his players.

Borden sued the school district, saying he had the right to silently take part in student initiated prayer.

Americans United for Separation of Church and State, a watchdog group that represented the school board in court, lauded the high court's decision not to hear the case. The decision came without explanation from the justices.

"A coach's job is to teach kids how to play a sport, not promote religion," said the Rev. Barry W. Lynn, executive director of Americans United. "This case is a firm reminder that parents, not school personnel, are the rightful decision-makers when it comes to children's religious upbringing."

Borden's attorney, Ronald J. Riccio, acknowledged that the Supreme Court's decision not to hear the case is the end of the road.

"The Supreme Court is the court of last resort," Riccio said. "We were disappointed, obviously. The court could have brought a lot of clarity and helped public school educators and administrators and coaches understand the parameters of the school prayer issue."

Borden was initially successful in his legal battle. The U.S. District Court ruled in July 2006 that the school district could not prohibit him from silently bowing his head or taking a knee, described as signs of respect, while his players prayed.

But after learning that it would be responsible for paying Borden's legal costs, the East Brunswick Board of Education appealed and had the decision reversed in May 2008.

The 3rd Circuit Court of Appeals, in Philadelphia, found that Borden's silent participation in the prayers violated federal laws, given his prior history of organizing and at times leading the prayers himself. The judges said an objective observer of Borden's gestures with the team would conclude that he was endorsing a religious activity.

Riccio requested a rehearing by the full appeals court, but was turned down. Finally, last summer, Riccio petitioned the Supreme Court to hear the case, saying it met the criteria for the high court and deserved its attention.

Riccio argued that the 3rd Circuit decision created two classes of coaches — those like Borden who have a history of prayer with students and are prohibited from taking a knee or bowing one's head; and those who don't. He said the judges' opinions could be interpreted to mean that Borden's assistant coaches are permitted to make the gestures, but not the head coach.

Riccio said last year that the Supreme Court should hear the case because it is an issue of national importance. Also, he said, the law is unclear in the area, and there had been contradictory decisions in the lower federal courts.

According to Americans United, the Supreme Court struck down coercive forms of school-sponsored prayer in 1962 and declared mandatory Bible reading in schools unconstitutional the following year. Since then, the court has ruled uniformly that public schools cannot sponsor religious activities, the group noted in a press release.

The court record showed that Borden had long promoted worship activities among students. He often led pre-game prayer and for 14 years brought in a chaplain to pray with players prior to team meals, according to Americans United. He later began assigning students to lead the devotions. Borden discontinued those activities at the direction of school officials, who said they had received complaints from parents about the coach's actions.

After the U.S. District Court ruled in Borden's favor, Americans United offered to represent the East Brunswick school district pro bono. Its assistant legal director, Richard B. Katskee, argued the case before the 3rd Circuit, winning the ruling there on appeal. The board's regular legal firm, Scarinci and Hollenbeck, LLC, assisted in the case.

"Children have a clear right to attend public schools without religious pressures being brought to bear by school personnel," Katskee said. "Coach Borden was out of bounds and the courts were right to blow the whistle. I hope that other coaches and school personnel learn a lesson from this."

East Brunswick Board of Education President Todd Simmens said public school officials "simply may not engage with students in religious activity."

"Consistent with this law, the Board of Education and district officials have throughout this case made certain that no school employee supervises or otherwise participates in any type of prayer with our students," Simmens said. "Needless to say, the board is pleased that in this case the courts have reaffirmed this long-standing constitutional principle."

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