On The Front Lines
Rutherford Attorneys Ask Appeals Court to Re-Visit Case of Football Coach Prohibited from Bowing Head During Team's Pre-Game Prayer
PHILADELPHIA, Penn. -- Attorneys for The Rutherford Institute have filed a petition for re-hearing with the U.S. Court of Appeals for the Third Circuit in the case of a football coach who was prohibited by school officials from silently bowing his head or "taking a knee" while his players offered a pre-game prayer. Institute attorneys, acting as co-counsel for football coach Marcus Borden, are asking the Third Circuit to revisit the recent ruling of a three-judge panel of the court, which held that Borden's expressive conduct is not protected by the First Amendment.
"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. "This undermines a time-honored tradition that has less to do with religion than it does athletic tradition. It's a sad statement on our rights as Americans that schools are no longer bastions of freedom."
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, which has been a regular part of the high school football team's pre-game activities for over 25 years. However, 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 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. The District Court also ruled that the school district would not be subject to liability under the Establishment Clause by virtue of Borden's gestures of respect. However, in challenging the court's decision, the school district, aided by Americans United for Separation of Church and State, argued that Borden has no constitutional rights of expression or academic freedom in connection with his duties as a teacher and coach.
Institute attorneys 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. In issuing its ruling, a three-judge panel of the Court of Appeals reversed the lower court judgment in favor of Borden, declaring that "based on the history of Borden's conduct with the team's prayer, his acts cross the line and constitute an unconstitutional endorsement of religion."
