Key Cases: Marcus Borden

The Rutherford Institute is defending the right of high school football coach Marcus Borden to silently bow his head and bend his knee while members of the football team engage in the time-honored practice of student-initiated pre-game prayer.

The case arose in October 2005 after officials at East Brunswick High School adopted a policy prohibiting representatives of the school district from participating in student-initiated prayer. Although the pre-game prayer has been a regular part of football since before Coach Borden started leading the team in 1983, school officials justified their actions by insisting that while student athletes have the constitutionally protected right to pray, that privilege does not extend to coaches, who are public employees and whose participation would violate the "separation of church and state."

In July 2006, U.S. District Judge Dennis Cavanaugh declared that the school district violated Coach Borden's constitutional rights to free speech, freedom of association and academic freedom when they prohibited him from silently bowing his head and "taking a knee" with his players while they engaged in student-initiated, student-led, nonsectarian pre-game prayers.

However, in challenging the court's decision, the school district, aided by Americans United for Separation of Church and State, is arguing that Borden has no constitutional rights of expression or academic freedom in connection with his duties as a teacher and coach. Rutherford Institute attorneys have rebutted the school district's claims, insisting that the liberties secured by the U.S. Constitution guarantee Borden's right to offer a simple, silent gesture of respect, whether he does so by silently bowing his head or taking a knee while his players say their pre-game prayer.

"There is a time and place when student religious expression is both appropriate and constitutionally sound," said John W. Whitehead, president of The Rutherford Institute. "This school district's insistence on forbidding the small gestures of respect Coach Borden desires to demonstrate to his football team is part of an unfortunate national trend to use the Establishment Clause as a justification for suppressing the liberty of individuals whenever matters of faith are involved."