In a case that could expand the limits of prayer in public schools, a federal appeals court is being asked to decide whether the football coach at East Brunswick High School can take part in pregame prayer led by students.

The man in the center of the controversy is Marcus Borden, a Spanish teacher and head football coach in East Brunswick for 23 years.

For much of that time, he has presided over pro- and post-game prayers with team members and cheerleaders. On some occasions, the prayers made reference to Jesus.

In September 2005, parents of Jewish and non-religious cheerleaders and a player complained to the township's school board. School superintendent Jo Ann Magistro declined to make their names public.

But she ordered the coach to stop participating in the session. He refused and filed suit to change the policy. In July 2006, United States District Court Judge Dennis Cavanaugh ruled that the school board had violated Borden's constitutional right of free expression.

On Oct. 3, opponents of Borden asked the United States Third Circuit Court of Appeals to overturn that decision.

"There is a body of case law, 20 or 25 cases, which stands for the proposition that public school teachers don't have a right to pray with their students," said Marc Stern, assistant executive director of the American Jewish Congress and codirector of its Commission on Law and Social Action.

It is being argued that "Borden had his own free speech rights, and the school board told him not to pray," said Stern, "even though he was acting as a school board employee at that moment."

In an amicus brief filed by AJCongress, Stern wrote that Borden led team prayers "in open and notorious defiance of settled law."

That action, said Stern, was "official speech, whether he led the prayers himself, charged a student with doing so, or merely communicated to the team his participation in their prayers by bowing his head or 'taking a knee.'"

Borden's counsel, Ronald Riccio, a former dean of Seton Hall School of Law and a professor of constitutional law, disputed Stern's version of the facts.

Borden "didn't lead the prayers. He didn't even say the prayers," Riccio told NJ Jewish News. "He just bowed his head when the kids decided to pray, and 'took a knee,' which he was doing anyway as part of his coaching."

("Taking a knee" is a practice of football team members of dropping to one knee for purposes that include strategy discussions as well as prayer recitation.)

"What has gotten confused is the suggestion that this case is about a coach leading his players in prayer. It is not." Riccio did concede that prior to the 2006 football season, "Borden and his predecessor on sporadic occasions have participated in some way in student prayer. There is nothing wrong with that as long as it is student-initiated."

Following the school superintendent's instructions, Riccio said, Borden followed his team members in dropping to one knee, then bowing his head as they recited prayers.

"There was no indication that he was praying," Riccio insisted. "The case isn't about the coach praying. The case is about the coach showing respect."

According to Borden's attorney, the notion of "taking a knee" is not a religious gesture associated with Christian prayers.

"The players weren't kneeling. They were on one knee, and anybody who knows anything about sports will tell you that when you 'take a knee' it is a universal [sports] practice and it is not praying. Genuflecting and taking a knee are completely different."

The attorney called reports of parental objection "all hearsay. The allegation was that some parents complained to the superintendent, who then brought it to the attention of the school board. The complaints were never documented. No person has come forward ever to say 'we don't like what Coach Borden is doing.' It was all based on what the superintendent got wind of from some parents," Riccio said.

Attorney Marc Herman, cochair of the government affairs committee of the Jewish Community Relations Council at the Jewish Federation of Greater Middlesex County, told NJJN he had not "been involved, but all of us in Middlesex County can't help but know about it."

Declining direct comment on the Borden case, Herman said, "The facts are not common and not likely to repeat themselves. But we are staunch advocates for separation of church and state. If the facts were to arise that a government employee is organizing and sponsoring a religious activity on government property during government time, we are concerned."

"This is part of the football curriculum. It is a school-sponsored activity," argued Ayesha Khan, legal director of Americans United for Separation of Church and State, an organization opposing Borden's legal battle.

"Borden claims he is not doing this to support any religious practice, that he is doing this to show solidarity with the team. The players are absolutely able themselves to engage in prayer no matter what, but the question was whether Borden can join them. If the decision is upheld, it would really strike a blow at the public schools being places in which people of all faiths and no faith are welcome," she said.

Riccio strongly disagreed.

"What is at stake is the basic freedom of teachers and coaches to show respect for their students and the students' right to express themselves," he said. "It is also being neutral to religion — not hostile."