new jersey football and god don't mix!

and yet another milestone in the fight for freedom from religion...

while the chicago tribune announced on 4/15/08 that Court says coach can't kneel, bow head as team prays (sorta a loaded title, huh?), NSBA legal clips gives us an unbiased summary:

N.J. district's policy against faculty joining student prayers upheld

The U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, V.I.) has ruled that a New Jersey school district's policy prohibiting faculty participation in student-initiated prayer was not unconstitutional on its face or as applied to the high school football coach who challenged it. The court also ruled that the coach's silent acts of bowing his head or taking a knee during prayer violated the Establishment Clause because, when viewed in light of his 23 years of prayer activities with the team, they would appear to a reasonable observer to endorse religion. The decision reverses a federal district court's ruling that had struck down the policy and held that the coach's silent acts did not violate the Establishment Clause. Marcus Borden, head varsity football coach at East Brunswick High School, had traditionally participated in a team prayer before the pre-game meal and again before the team took the field. When some parents complained and threatened litigation, East Brunswick School District (EBSD) restated its school prayer policy and warned Mr. Borden that his participation, including standing and bowing his head and kneeling, 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. A U.S. district court ruled in his favor.

On appeal, the Third Circuit first rejected Mr. Borden's claim that the policy was unconstitutionally overbroad, finding that it merely prohibited expression that amounts to school sponsorship or endorsement of prayer and would violate the Establishment Clause. The court likewise rejected the contention that the word "participate" in the district's policy was unconstitutionally vague, finding that the policy sufficiently elaborates what constitutes participation. Turning to the as-applied challenges, the court noted that the free speech claim would be governed by the two-pronged test established for public employee speech in Connick v. Myers, 461 U.S. 138 (1983). Under the first prong of the test, the court found that the coach's silent acts of expression were not speech on a "matter of public concern" but were "personal to the [coach] and his team…." Because the speech was not protected, the court had no need to balance Mr. Borden's interest in the speech against his employer's interest in limiting it. Addressing the academic freedom claim, the court noted that by Mr. Borden's own admission his acts were pedagogical in nature, and the school district had the authority to deem his methods inappropriate. His freedom of association claim also was without merit, because that right only protects relationships involving a closeness "not present between a high school football coach and his team." As for the due process claim, the court found that because the policy was "not so vague that people of common intelligence must guess as to its meaning," he must demonstrate that it infringed on a fundamental right. However, "Borden has no interest—privacy, liberty, or otherwise—in behavior that violates the Establishment Clause."

Lastly, the Third Circuit concluded that "the school district has a legitimate educational interest in avoiding Establishment Clause violations," and that its policy was reasonably related to that interest. Applying the "reasonable observer" standard under the Establishment Clause's endorsement test, whereby the inquiry is "whether a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion," the court determined that "[t]he history and context of Borden's prayer activities with the team, if challenged, could have been Establishment Clause violations." The coach's 23 years of leading the team in prayer "signals an unconstitutional endorsement of religion," and his involvement, as participant, organizer, and leader, would lead a reasonable observer to this conclusion. However, the court acknowledged, absent this history "if a football coach, who had never engaged in prayer with his team, were to bow his head and take a knee while his team engaged in a moment of reflection or prayer, we would likely reach a different conclusion because the same history and context of endorsing religion would not be present."