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A New Jersey school district did not violate a high school football coach’s First Amendment rights by ordering him not to get on bended knee with his players for pregame moments of silence, the 3rd U.S. Circuit Court of Appeals has ruled. A three-judge panel said that since East Brunswick High School coach Marcus Borden had led the team in prayer for 23 years, his new practice of “taking a knee” and bowing his head would be reasonably perceived as an endorsement of religion. “Based on the history of Borden’s conduct with the team’s prayers, his acts cross the line and constitute an unconstitutional endorsement of religion,” Judge D. Michael Fisher wrote in Borden v. School District of the Township of East Brunswick, No. 06-3890. “Although Borden believes that he must continue to engage in these actions to demonstrate solidarity with his team, which is perhaps good for a football team’s unity . . . [a] reasonable observer would conclude that Borden is endorsing religion,” Fisher wrote. Judges Maryanne Trump Barry and Theodore McKee Jr. each filed concurring opinions. McKee suggested that he would have issued a broader ruling. “I believe that Borden’s ‘respectful display’ might well violate the Establishment Clause even absent his 23-year history,” he said. Barry said she wrote separately to emphasize that, without Borden’s history of leading prayers, she would not hold that a silent bowing of the head and bending of the knee cross the line. She said she joined Fisher’s opinion only because she agreed that the decision to bar the practice was “necessary for the school district in order to avoid Establishment Clause violations.” In 2005, Superintendent Jo Ann Magistro learned from parents that Borden had a practice of genuflecting and bowing his head at team dinners and in the locker room before football games. She promptly issued a policy forbidding the practice. Borden sought an injunction preventing the district from enforcing it. Secular genuflection Borden’s lawyer, Ronald Riccio of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, N.J., argued that bowing and genuflecting are secular coaching techniques for fostering team unity. The district’s lawyers, Martin Pachman and Steven Kleinman of Scarinci & Hollenbeck of Lyndhurst, N.J., responded that the policy was meant to eliminate the appearance that the football program favors religion and to “quell the religiously based divisiveness into which Borden’s actions had plunged the school community.” In July 2006, U.S. District Judge Dennis Cavanaugh granted summary judgment in Borden’s favor, finding that the school district had violated the coach’s federal and state constitutional rights. Cavanaugh found that “taking a knee” in football “does not have the religious significance typically associated” with kneeling during prayer. “I find nothing wrong with remaining silent and bowing one’s head and taking a knee as a sign of respect for his players’ actions and traditions, nor do I believe would a reasonable observer,” he said. In reversing, Fisher wrote that although public employees retain their First Amendment rights to speak out on issues of “public concern,” Borden’s actions “are meant for the consumption of the football team only,” and therefore did not trigger the protection of his right, as a public employee, to freedom of speech. Fisher found that Borden admitted that his silent acts “are tools that he uses to teach his players respect and good moral character.” Fisher added that “by his own admission, his coaching methods are pedagogic,” and Borden is therefore “acting as a proxy for the school district.”

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