3rd Circuit Upholds Ban on Coach's Pre-Game Prayer

In Borden v. School District of the Township of East Brunswick, (3d Cir., April 15, 2008), the U.S. 3rd Circuit Court of Appeals reversed the district court and upheld the East Brunswick, New Jersey School District’s policy prohibiting faculty participation in student-initiated prayer. The lawsuit was filed by high school football coach Marcus Borden who wished join with his team in bowing his head during the team's pre-meal grace and taking a knee during a prayer in the locker-room by team members. The court held that the school policy was neither vague nor overboard, and its application to Borden did not violate his free speech rights. It went on to hold that the school district had a right to adopt the policy because it was concerned with Establishment Clause violations. It said:

when viewing the acts in light of Borden’s twenty-three years of prior prayer activities with the East Brunswick High School football team during which he organized, participated in, and even led prayer activities with his team, a reasonable observer would conclude that Borden was endorsing religion when he engaged in these acts.

In interesting dicta, the majority said: "We agree with Borden that bowing one’s head and taking a knee can be signs of respect. Thus, 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." In a concurring opinion, Judge McKee disagreed with this dicta. Judge Barry also wrote a concurrence. Newsday reports on the decision.