Free counsel offered in team-prayer appeal

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Free counsel offer in team-prayer appeal

By Greg Tufaro, The Home New Tribune (East Brunswick, New Jersey), August 25, 2006

The East Brunswick Board of Education is appealing a federal court ruling that allows varsity football coach Marcus Borden to participate in team prayer in order to protect the constitutional rights of students and eliminate pending legal fees.

The board is considering accepting a pro bono offer from outside counsel to appeal U.S. District Judge Dennis Cavanaugh's July 25 decision. Americans United for Separation of Church and State, a nonsectarian, nonpartisan watchdog group based in Washington, D.C., may be coming to the board's aid.

In a ruling from the bench last month, Cavanaugh upheld every element of Borden's lawsuit against the school district, stating its guidelines preventing him from participating in team prayer were "overbroad and vague" and violated his constitutional rights.

Cavanaugh has since ordered the board to pay the legal fees of Borden's attorney, Ronald J. Riccio, which may approach $100,000. The board's insurance broker covered the $48,000 in legal fees for its attorney, Martin Pachman.

"By accepting the lower court's position without appealing, the board would have to pay Mr. Riccio's fees," Trish LaDuca, a spokeswoman for the school district, said in a press release yesterday. "Should the board accept an offer from outside counsel to appeal the case pro bono, a win at the court of appeals will ensure that the district incur no costs whatsoever at either stage of litigation."

A loss at the U.S. Court of Appeals for the Third Circuit in Philadelphia, however, could mean that the board will owe Riccio at least twice as much in legal fees. Riccio, who took Borden's case on pro bono, said he unsuccessfully tried to negotiate an acceptable fee with the school board.

"The court ordered East Brunswick to pay counsel fees, which is the standard procedure when a school board violates the constitutional rights of one of its employees as it did here," Riccio said. "The court has not yet set the amount of fees and I have been more than willing to reduce my fees well beyond what I anticipate the court will award. My offer was not responded to by the board."

LaDuca said last night she would not comment beyond the contents of her press release. Messages left for Pachman and School Board President Holly Howard were not returned.

Money motive?
"It sounds like the main reason they are taking the appeal is because the court ordered the board to pay my counsel fee and not because of the underlying merits of what the court did," Riccio said. "It seems to have deteriorated to the point that it's all about money and not, as the board said a number of times, the legal principle involved."

LaDuca's release, which stated that "financial considerations were also a critical factor in the Board of Education's decision to reconsider an appeal," emphasized protecting students' rights over legal fees.

"(The) court failed to recognize both the right and duty of the school district to regulate the conduct of its employees; and it similarly failed to respect the rights of public school students to be free from religious coercion and messages of school endorsement for religion," the release stated. "(Cavanaugh's) decision, which allows Coach Borden to participate in team prayer, does not put the rights of the students first, nor does it protect the constitutional rights of every one of the nearly 9,200 students in East Brunswick's very diverse population."

Cavanaugh ruled that Borden could stand and bow his head while players say grace during pregame team meals and that he could "take a knee" with players as they pray in the locker room before games.

Pachman unsuccessfully argued that such participation violates the First Amendment's Establishment Clause, which prohibits the government or its agents from promoting or endorsing religion.

Reversing field
The judge's decision was hailed as a victory for high school football coaches across the country, some of whom were told they could no longer participate in team prayer after Borden's case made national headlines 10 months ago.

Cavanaugh's decision seemed to initially satisfy the school district, which released a statement hours after his ruling saying it was "pleased that the litigation" was over.

"(Borden) will be permitted to bow his head or take a knee with his players, not in prayer, but as a sign of respect," the July 25 release stated. "The district has accomplished its goal, which was to get direction from the court as to what Mr. Borden could and could not do."

The appeal will likely be heard long after the conclusion of the high school football season, which begins on Sept. 8. Until then, the district will follow the lower court's ruling, allowing Borden to bow his head and take a knee during constitutionally protected student-initiated, student-led prayer.

Borden resigned on Oct. 7 in protest of the district's school-prayer policy. Upon Riccio's advice, he rescinded that resignation 10 days later, agreeing to comply with the policy while simultaneously keeping alive a legal challenge.

Riccio filed suit on Borden's behalf on Nov. 21, claiming the coach's First and Fourteenth Amendment rights to free speech, privacy, personal autonomy, freedom of association and academic freedom were being violated by the district's policy.

"Mr. Riccio, who offered his services to Mr. Borden pro bono, has requested that he be remunerated nearly $100,000 by the board for services rendered to his client," LaDuca's release stated. "Until Mr. Riccio's intent to seek compensation became known, the board incurred no cost with regards to this legal issue."

Riccio defended his right to pursue legal fees as the prevailing attorney under state law and his decision to take on Borden's case.

"If I didn't agree to represent Coach Borden on a pro bono basis, what could he have done?" Riccio said. "Where would he have turned, and who would have been there to defend his liberty rights? That's the reason I got involved."

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