523 F.3d 153 (3rd Cir. 2008), 06-3890, Borden v. School Dist. of Tp. of East Brunswick

Docket Nº:06-3890
Citation:523 F.3d 153
Party Name:Marcus A. BORDEN v. SCHOOL DISTRICT OF The TOWNSHIP OF EAST BRUNSWICK; Board of Education of The Township of East Brunswick; Dr. Jo Ann Magistro, in her capacity as Superintendent, School District of the Township of East Brunswick, Appellants.
Case Date:April 15, 2008
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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523 F.3d 153 (3rd Cir. 2008)

Marcus A. BORDEN


SCHOOL DISTRICT OF The TOWNSHIP OF EAST BRUNSWICK; Board of Education of The Township of East Brunswick; Dr. Jo Ann Magistro, in her capacity as Superintendent, School District of the Township of East Brunswick, Appellants.

No. 06-3890

United States Court of Appeals, Third Circuit.

April 15, 2008

Argued October 3, 2007.

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 05-cv-05923) District Judge: Honorable Dennis M. Cavanaugh

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Alex J. Luchenitser, Ayesha N. Khan, Richard B. Katskee, (Argued), Americans United for the Separation of Church & State, Washington, DC, Martin R. Pachman, Scarinci & Hollenbeck, Freehold, NJ, Attorneys for Appellants.

F. Michael Daily, Jr., The Rutherford Institute, Westmont, NJ, Ronald J. Riccio, (Argued), McElroy, Deutsch, Mulvaney & Carpenter, Morristown, NJ, Attorneys for Appellee.

Marc D. Stern, American Jewish Congress, New York, NY, Attorney for Amicus-Appellants, American Jewish Congress and The Jewish Social Policy Action Network.

Pammela S. Quinn, O'Melveny & Myers, Washington, DC, Attorney for Amicus-Appellants, The Interfaith Alliance, The Anti-Defamation League, Hadassah, Jewish Women International, Muslim Advocates, Sikh American Legal Defense and Education Fund, Sikh Council on Religion and Education, and Union Reform Judaism.

Steven G. Gey, Florida State University, College of Law, Tallahassee, FL, Attorney for Amicus-Appellant, National Center for Science Education.

Emily B. Goldberg, Gibbons, P.C., Newark, NJ, Attorney for Amicus-Appellants, American Civil Liberties Union, American Civil Liberties Union of New Jersey, American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Delaware, American-Arab Anti-Discrimination Committee, American Ethical Union, American Jewish Committee, Hindu American Foundation, and The Unitarian Universalist Association.

Before: McKEE, BARRY and FISHER, Circuit Judges.


FISHER, Circuit Judge.

Marcus Borden, the head football coach at East Brunswick High School, would like to engage in the silent acts of bowing his head during his team's pre-meal grace and taking a knee with his team during a locker-room prayer. He brought suit seeking

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a declaratory judgment that the East Brunswick School District's policy prohibiting faculty participation in student-initiated prayer was unconstitutionally overbroad and vague, and violated his federal and state constitutional rights to freedom of speech, academic freedom, freedom of association, and due process. On cross-motions for summary judgment, the District Court for the District of New Jersey declared the policy unconstitutional on all grounds, and it additionally held that Borden's silent acts would not violate the Establishment Clause of the First Amendment. However, we hold that the policy is not unconstitutional on its face or as applied to Borden. Additionally, we hold that Borden's silent acts violate the Establishment Clause because, when viewing the acts in light of Borden's twenty-three years of prior prayer activities with the East Brunswick High School football team during which he organized, participated in, and even led prayer activities with his team, a reasonable observer would conclude that Borden was endorsing religion when he engaged in these acts. Therefore, and for the reasons set forth in further detail below, we will reverse the District Court's order.


A. Factual History

1. 1983-2005 (Pre-litigation)

Marcus Borden is the head football coach at East Brunswick High School ("EBHS"), and he has held that position since 1983.1 During his tenure at EBHS, Borden engaged in two pre-game prayer activities that occurred (1) at the team dinner; and (2) while taking a knee in the locker room.

As part of the pre-game activities for the EBHS football team, the team ate a pasta dinner together at approximately 3:00 p.m. on game day in the high school cafeteria. In addition to the team, parents and other guests, including the cheerleading squad, were present. Prior to the time Borden coached the team to 1997, a local minister, Reverend Smith, said a pre-meal prayer. However, in 1997, the athletic director told Borden that Reverend Smith could not continue to say the prayer. Instead, Reverend Smith wrote a prayer that the students took turns reading. Then, in 2003, Reverend Smith retired, and Borden did not continue to have the students read Reverend Smith's prayer. Borden instead began a new tradition: he said the prayer prior to the first pre-game dinner of the 2003, 2004, and 2005 seasons. For the subsequent weeks of those seasons, Borden asked those attending the dinner to "please stand," and chose a senior player to say a prayer.

In addition to the prayer before the team dinner, Borden led his team in a prayer immediately before the game. Prior to taking the field, Borden and his assistant coaches asked the players to take a knee in the locker room. The team gathered in front of the chalkboard or dry erase board on one knee, and at that time, Borden discussed the tactics and strategy for that particular game. Following that discussion, Borden led the team in a prayer. Borden described an example of the prayer he said as follows:

"[D]ear lord, please guide us today in our quest in our game, our championship. Give us the courage and determination that we would need to come out successful. Please let us represent our families and our community well. Lastly, please guide our players and opponents

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so that they can come out of this game unscathed, [and] no one is hurt."

The team participated in this tradition for twenty-three seasons, beginning when Borden became the coach of the EBHS football team in 1983 and continuing until the 2005 football season.

On September 26, 2005, Jo Ann Magistro, the Superintendent of the East Brunswick School District ("School District"), received a complaint from a parent about the prayer at the team dinner. The parent told Magistro that she thought it was inappropriate that Borden requested that everyone stand for the prayer and that he bowed his head during the prayer. Over the course of that week, two other parents complained to Magistro about the prayer. One of the complaining parents had a son on the team, and the parent told Magistro that her son felt uncomfortable during the prayer and feared that the coach would select him to say the prayer.

Although Magistro did not contact Borden herself, the EBHS principal and athletic director contacted Borden about these complaints. They told him not to lead the team in prayer, and he responded that he did not lead them in prayer. At the team dinner on September 30, 2005, he continued the prayer traditions in the manner described above. It was alleged that he told the students that if they felt uncomfortable during the prayer, they could wait in the restroom until it was over. Following that game, Magistro received several more complaints.

On October 6, 2005, the School District's counsel, Martin Pachman, advised Magistro and the East Brunswick Board of Education ("Board") regarding Borden's conduct, stating that a coach for the school could not lead, encourage, or participate in student prayer. Magistro met with Borden the next day, October 7, 2005, and told him that all prayer needed to be student initiated, including the selection of which student would recite the prayer. At that time, Borden asked her if he could continue to say the pre-game prayer in the locker room. In response, Magistro contacted Pachman, who answered Borden's questions. At the end of the conversation, Magistro asked Pachman to provide clear guidelines on faculty participation in student prayer.

Later that day, Magistro sent Borden a memorandum and attached the guidelines provided by Pachman. Magistro stated that she recognized Borden's disappointment, but she expected him to comply with the guidelines, and "[n]ot to comply will be viewed as insubordination." The attached guidelines, which stated that they were not "exhaustive or final," were as follows:

"1. Students have a constitutional right to engage in prayer on school property, at school events, and even during the course of the school day, provided that:

A. The activity is truly student initiated; and

B. The prayer activity does not interfere with the normal operations of the school district.

This would mean that, for example, if a student or a group of students wish to engage in a prayer before or after their meal in the cafeteria during their lunch period they would have a right to do so, provided that the activity in which they are engaged does not disrupt the normal operation and decorum of the other students eating in the cafeteria. Also, if student athletes on their own decide to hold a prayer huddle before a game, after a game, or during half-time, they have a right to do so.

2. Neither the school district nor any representative of the school district

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(teacher, coach, administrator, board member, etc.) may constitutionally encourage, lead, initiate, mandate, or otherwise coerce, directly or indirectly, student prayer at any time in any school-sponsored setting, including classes, practices, pep rallies, team meetings, or athletic events.

3. Representatives of the school district, as referenced above, cannot participate in student-initiated prayer. That very issue was decided by the Fifth Circuit Court of Appeals in a decision cited with approval by the United States Supreme Court and is, therefore, the operative law of the land at this time. To quote the Court, 'If while acting in their official capacities (school district) employees join...

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