Coach's case up for hearing

defending the First Amendment against the Christian right ...

... because if Jews don't speak out, they'll think we don't mind

Web JewsOnFirst

Optional Member Code

Please email us
(click here)
catcher@JewsOnFirst.org

And "bookmark" us at
JewsOnFirst.org

Jews on First
P.O. Box 33821
Washington DC 20033

310-553-1146

Coach's case up for hearing

By Greg Tufaro, Home News Tribune (Central New Jersey), July 4, 2006

EAST BRUNSWICK - Independence Day holds special meaning for East Brunswick High School football coach Marcus Borden, whose lawsuit against the school district is scheduled to be heard later this month.

"One of the founding principles of our country is a person's freedom and individual liberty," said Borden's attorney, Ronald J. Riccio. "This case is about Coach Borden getting back the freedom and liberty that was denied to him last year so that he can show his respect in deference for his players when they exercise their freedom to say pregame prayers."

Borden filed suit against the district in November, claiming it is violating his constitutional rights by prohibiting him from silently bowing his head or "taking a knee" with players while they engage in student-initiated, student-led, nonsectarian pregame prayer.

U.S. District Court Judge Dennis Cavanaugh is scheduled to preside over a nonjury trial for Borden's lawsuit on July 24 in Newark. However, Cavanaugh could rule in the upcoming weeks without a trial based on the contents of legal briefs submitted over the past month.

School board attorney Martin Pachman asked Cavanaugh on June 15 to dismiss the suit. Riccio filed a cross-motion one week later, asking Cavanaugh for an injunction that would allow Borden to bow and "take a knee" while his players prayed. Pachman has until tomorrow to respond to Riccio's request.

Pachman could not be reached for comment, but wrote in his June 15 brief that allowing Borden to bow or "take a knee" during team prayer would violate the First Amendment's establishment clause.

"Representatives of the district cannot participate in that prayer," Pachman wrote. "To do otherwise would impermissibly cross the line between respect for religion and endorsement of religion by an agent of a governmental entity."

Riccio said Borden is merely trying to show respect for religion, which is constitutionally permissible, not to coerce or encourage it. He said, the legal battle must be resolved before Aug. 14, the first day high school football players are allowed to practice under New Jersey State Interscholastic Athletic Association rules.

According to East Brunswick senior quarterback and co-captain Randall Nixon, every member of the 2006 squad plans on continuing the program's tradition of team prayer, one that Borden inherited upon becoming the school's coach 24 years ago. The team generally says pregame prayers of thanks or asks God to protect them and their opponents on the field.

"All the team members told (Nixon and co-captain Sergio Garcia) that they wanted to say pregame prayers during the upcoming season," Nixon said in a June 22 sworn declaration that Riccio filed on Borden's behalf. "They will take place in the cafeteria prior to the team's pre-game meal and in the locker room prior to taking the field. The prayers will always be nondenominational, initiated by a player, composed by a player, led by a player and voluntary."

Pachman expressed concern in his brief for players who privately may not want to join teammates in prayer.

"Even without (Borden's) participation, the peer pressure to conform and pray along with fellow team members in truly voluntary, student-initiated prayer will be enormous," he wrote. "If (Borden) succeeds with this lawsuit, the primary effect will be to promote or advance religion since it will be practically impossible for a team member not to participate in the prayer."

In protest of the district's directive prohibiting him from participating in team prayer, Borden resigned as East Brunswick's coach on Oct. 7. He made national headlines in the process.

Upon the advice of Riccio, Borden rescinded that resignation 10 days later, agreeing to comply with the district's mandate while simultaneously keeping alive a legal challenge.

Borden stood at attention while players prayed before games at the end of last season. Nixon said "it was awkward to watch Coach Borden remain motionless while the team prayed." He said the district's directive "created a separation between Coach Borden and his players at two important pregame events that hurt team morale and team spirit."

Pachman wrote in his June 15 brief that Borden's inability to bow or "take a knee" during team prayer should not impede his ability to coach or build camaraderie.

"Quite simply," Pachman wrote, "prayer is not fundamental to football. It does not create a strong rushing game or an effective pass defense. The values of teamwork and character espoused by (Borden) are not unique to religion at all, and can still be taught effectively without violating the establishment clause."

In depositions taken by Riccio and submitted to the court on June 22, Schools Superintendent Jo Ann Magistro and Board President Michael Baker both said they were unsure whether Borden's request was unconstitutional.

"I don't know how bowing a head is considered, if that's considered a violation of the establishment clause or not," Baker said. "Bowing the head can mean many things depending on the circumstances."

Magistro said it is up to Cavanaugh to determine whether allowing Borden to bow and "take a knee" during team prayer is permissible.

"I believe that if the courts determine that taking a knee, bowing his head, is appropriate, that's fine," Magistro said. "He can do that."

Pachman said the district's directive clearly delineates what restrictions have been placed on Borden during team prayer. Riccio disagreed.

"The deposition testimony of (Baker and Magistro) not only did not clarify what coach Borden could and could not do when his players say their pregame prayer, but they actually further confuse the situation to the point where no reasonable person can understand what the district considers to be permissible and impermissible," he said.

Fair Use Statement: This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.