- The Washington Times - Thursday, April 24, 2008

Attorneys for a New Jersey high school football coach who has been told he cannot bow his head or “take a knee” with his players as they pray before a game are appealing the decision and think the case eventually will end up before the Supreme Court.

Last week, a panel of judges from the 3rd U.S. Circuit Court of Appeals ruled that Marcus Borden may not participate in the prayers, even by silent acts. The ruling noted that the coach has a history of initiating and encouraging prayers with his players.

Officials at the Rutherford Institute, which is helping represent Mr. Borden, said his rights are being violated and that they would appeal the decision to the full 3rd Circuit.

“If this ruling is allowed to stand, it will mean that high school teachers across the United States will have no free speech or academic freedom rights at all,” said John W. Whitehead, president of the Rutherford Institute.

He said the coach’s actions simply demonstrate respect for his players at East Brunswick High School and that the school district has taken an “extreme” position. “This undermines a time-honored tradition that has less to do with religion than it does athletic tradition,” he said.

If the full 3rd Circuit upholds the panel’s decision, Mr. Whitehead said, the case will be appealed to the Supreme Court.

“I think we have a very good chance because of the national ramifications,” he said, arguing that the courts should clarify the issue. “What if a student initiates a prayer? Does the teacher have to duck under a desk? It’s going to make it very uncomfortable for teachers and coaches.”

Attorneys for the school district said several court cases have made it clear that school officials may not endorse or promote religion. They cited a 2000 Supreme Court ruling against public prayer at a high school football game.

“The Borden decision does not make any new law,” said Richard B. Katskee, an attorney for Americans United for Separation of Church and State who argued before the appeals court.

The case stems from a school district policy instituted in October 2005 prohibiting any school representative from participating in student-initiated prayer. A U.S. District Court ruled against the school policy in July, but the school district and Americans United appealed that decision.

The panel of judges last week reversed the lower court’s ruling, finding the school’s policy acceptable given Mr. Borden’s history of encouraging his players to pray.

Court papers explained that Mr. Borden led the team in prayer during at least three pre-game dinners, and led the team in pre-game prayer in the locker room for 23 seasons. In response to parents’ complaints, the district superintendent issued a policy that prohibited school officials from leading, encouraging, initiating, mandating or coercing prayer and banned them from participating in student-initiated prayer, according to court papers.

Team players voted to continue the pre-game prayers, and Mr. Borden petitioned the U.S. District Court to allow him to bow his head and silently “take a knee” with his players as they prayed, court papers stated. The District Court agreed.

Mr. Katskee said teachers should not be “sending the message to the students that prayer is something they should be doing, it’s expected.”

He said Mr. Borden should stand to the side while his team prays. “I think it’s the right way to respect all students’ beliefs,” he said.

Mr. Katskee said he doubts the Supreme Court would take the case.

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