Federal Judiciary

Watch Out for the ?Bow Police?

By Robert Loblaw

Borden v. School District of the Town of East Brunswick, 06-3890 (3^rd Cir., April 15, 2008)

This Third Circuit decision addresses a high school football coach?s challenge to the school district?s restrictions on his ability to pray with his players. Plaintiff Marcus Borden has been the head football coach at East Brunswick High School since 1983. For the first twenty-three years of his tenure, he had the team kneel down and say a prayer before each game. He also carried on a tradition of saying grace during team meals.

Borden?s religious traditions created a constitutional dilemma for the school: although students have a First Amendment right to engage in voluntary prayer, the Establishment Clause prohibits teachers and staff from leading or encouraging prayer. In 2005, after a student complaint, the school district instructed Borden not to participate in these prayerful activities. But the players continued to engage in voluntary prayer.

Borden then sued, seeking a declaratory judgment that would allow him to bow his head during grace and to kneel alongside his players during their pre-game prayer. He argued that this silent activity was a sign of respect for his players rather than participation in religious activity. The district court sided with Borden, concluding that the school?s restrictions on Borden were unconstitutional. The district court further held that Borden?s silent acts of bowing his head and bending on one knee did not violate the Establishment Clause.

On appeal, the Third Circuit unanimously reverses, holding that the school?s policy survives constitutional scrutiny, and that Coach Borden?s silent activities violate the Establishment Clause in light of his twenty-three year history of encouraging team prayer.

The decision is a fractured one, with all three panelists offering their views on the constitutionality of Coach Borden?s religious practices. Indeed, Judges Fisher and Barry believe that most high school coaches could kneel down with their team without violating the Establishment Clause, just not Coach Borden, given his long history of encouraging and leading team prayer; Judge McKee disagrees on the ground that a coach who kneels with his team is participating in prayer, and he has a picture to prove it.

Finally, Judge Barry?s concurrence highlights the inanity of this litigation:

One wonders how a court can dictate, beyond a certain point, what response [to players? prayer] is permissible, much less how a response would be enforced. Defendants told the District Court that Borden can bow his head, but he cannot do “a pronounced bowing of the head.” What is “pronounced,” and who would decide that question? As defendants also told the District Court, “The district does not have thought police, and we certainly don?t have bow police.”

She concludes,

With this litigation hopefully nearing its end, one also hopes that those involved will move forward as a team for the benefit of the young people who look to them for guidance and support.

Can I get an Amen?

Full post as published by Decision of the Day on April 15, 2008 (boomark / email).