by Robert Wiener
NJJN Staff Writer

April 24, 2008

Jewish observers were divided over a federal appeals court ruling barring a football coach in East Brunswick from leading his team in prayer.

The court ruled April 15 that Marcus Borden did not have a constitutional right to pray with team members and cheerleaders at East Brunswick High School.

The Anti-Defamation League welcomed the decision by the Third Circuit United States Court of Appeals.

“Public school teachers and coaches wield enormous influence over their students,” said Etzion Neuer, its New Jersey regional director. “Common sense and the constitution dictate that they may not use that authority, given to them by the government, to create an environment where children of differing faiths, or of no faith, are made to feel unwelcome in their school.”

But an attorney who fought against Marcus Borden’s participation in student prayer said the decision “is going to create much mischief and is very problematic.”

Marc Stern, of the American Jewish Congress, said he was troubled by a “very narrow reading” of legal precedents.

According to Stern, the ruling suggests that a coach without Borden’s long history of leading or encouraging students to pray would be allowed to join them, “and that’s a big problem.”

“The judges were obviously bending over backwards to create teachers’ rights to engage in religion with their students, but there is no such right,” Stern said. “No court has recognized a free speech right or an academic freedom right to engage in religious activity with one’s students. This court does that. It is problematic.”

The ruling reverses a trial court’s verdict. The appellate judges said “a reasonable observer would conclude that Borden was endorsing religion” during the 23 years he “organized, participated in, and even led prayer activities with his team.”

During that time, the judges noted, Borden “organized prayers for the pre-meal grace at the team dinner, selected seniors to say a prayer composed by a chaplain, and led prayers himself in the locker room.”

The ruling notes that the “current controversy is built upon a significant history of pre-game prayers that involved Borden.”

Robert Riccio, the Seton Hall Law School professor who is representing Borden, acknowledged Stern’s concern that the ruling can be narrowly interpreted.

“I’d say Borden is penalized because he has a history of engaging in prayer with his players,” he told NJ Jewish News. “Someone coming in without that history can do the very same thing Borden cannot do. So, the reality is Borden has opened up the doors for a lot of other coaches to be respectful of student prayer, even though he cannot do what they can do.”

Riccio said he intends to ask the United States Supreme Court to reverse the Court of Appeals decision because “it is very confusing and really cries out for the Supreme Court to step in and clear up the air once and for all.”

Stern said “it is hard to know” whether the Supreme Court will agree to review the case.

“Does Borden have any free speech rights because he is acting as a public official? The court has generally said those people don’t have rights” when they speak out in the course of their official duties.

In Stern’s mind, the key issue in the case has already been settled.

“There have been enough cases over the years where teachers have sought to pray with their students that the court has turned down, so you have to think the court is not particularly interested in opening that can of worms,” he said.

The Borden case began in 2005, when several sets of parents, some of them Jewish, complained to school superintendent Jo Ann Magistro about the prayers. Magistro ordered the coach to stop participating in the prayer sessions, so he filed a lawsuit.

In July 2006, United States District Court Judge Dennis Cavanaugh ruled that the school board had indeed violated Borden’s constitutional right of free expression.

As it voted to reverse Cavanaugh, the appellate court cited several examples of anti-Semitic entries on a student-run blog created after the coach filed his lawsuit, calling them “disgusting comments.”

“The fact that the prayer generated this anti-Semitic response is at least some evidence that this prayer was offensive, dividing people along religious lines,” said Stern.

But he said the ethnic slurs were “not overwhelmingly great proof, because we don’t know who sent” them.

Borden, who continues coaching and teaching Spanish at East Brunswick High School, “had a mixed reaction” to the court’s decision, said his attorney.

“His principle was vindicated, but he is disappointed that he was disqualified, at least temporarily, from that which others can now do because of his lawsuit,” said Riccio.

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