Legal issues
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0BORDENv.EastBrunswickCase.pptxMarcus A. BORDEN v. SCHOOL DISTRICT OF The TOWNSHIP OF EAST BRUNSWICK
United States Court of Appeals, Third Circuit
Case No. 06-3890.
Decided: April 15, 2008
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Initial Plaintiff and Initial Defendants
United States Court of Appeals, Third Circuit
Marcus A. BORDEN v.
School District of the Township of East Brunswick, NJ;
Board of Education of The Township of East Brunswick, NJ;
Dr. Jo Ann Magistro, in her capacity as Superintendent,
of the School District of the Township of East Brunswick,
Appellants (1, 2, & 3 above) of U.S. Federal Court 3rd Circuit decision
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Factual History (1983-2005)
Marcus Borden is/was the head football coach at East Brunswick High School (“EBHS”), and he has held that position since 1983. During his tenure at EBHS, Borden engaged in two pre-game prayer activities that occurred (1) [Blessing] at the team [pre-game] dinner; and (2) [Pre-game] Prayer while taking a knee in the locker room before each game.
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Reverend Smith
As part of 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 ‘til 1997, a local minister, Reverend Smith, said a pre-meal prayer. In 1997, the athletic director told Borden that Reverend Smith could not continue 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 having students read Reverend Smith's prayer.
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Coach Borden’s New Tradition (2003-2005)
Coach Borden 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 / 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 prayer.
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An Example of Borden’s Typical Prayer
“[D]ear lord, please guide us today in our quest / in our game / in 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 so that they can come out of this game unscathed, [and] no one is hurt.”
The team participated in the tradition for 23 seasons, beginning when Borden became hade coach of the EBHS football team in 1983 and continuing until the 2005 football season – similar to the tradition before he became head coach.
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The First Complaint
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 she thought it was inappropriate that Borden requested everyone stand for the prayer while 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.
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More Complaints
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. On September 30, 2005, he continued the prayer traditions in the manner described previously. 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.
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School System Lawyer Advice
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.”
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The Guidelines (1)
“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.
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The Guidelines (2)
2. Neither the school district nor any representative of the school district (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.
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The Guidelines (3)
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 hands in a prayer circle or otherwise manifest approval and solidarity with student religious exercises, they cross the line between respect for religion and endorsement of religion,’ and such conduct was prohibited.”
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Friday, October 7, 2005
Magistro meets with Coach Borden after school/prior to pre-game meal (as noted in Slide 09).
Borden goes to cafeteria and informs Offensive and Defensive Coordinators they will be co-head coaches for the night’s game; he then goes home and sends an e-mail resignation to the School Principal, Athletic Director, and School System Superintendent – none of whom saw the e-mail until Saturday morning (but those at the game wondered why Borden was not present?).
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October 17, 2005
Borden withdrew his resignation and agreed to abide by the School District's policy for the remainder of the 2005 season.
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October 20, 2005 Board Education Meeting (1)
Michael Baker, the president of the Board, read a prepared statement (“the Board's statement”).
Paragraph 1
“I want to take this opportunity on behalf of the Board of Education, to make some remarks regarding the events that have transpired with our football coach. First and foremost, Dr. Magistro has acted professionally, appropriately and respectfully. She has represented the district and the Board of Education with dignity and class. We sincerely thank her and appreciate the way she has conducted herself. We have instructed Dr. Magistro to get on with running the district and to defer any continuing distractions in this matter to our attorney, Mr. Pachman[,] or to the Board of Education.
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October 20, 2005 Board Education Meeting (2)
Paragraph 2
Coach Borden, after reconsidering his decision, has rescinded his resignation and continues as coach of the team. He will conduct himself in a manner that is in compliance with the law. We do not believe that there was any deliberate attempt or motive from him to do otherwise. We respect the rights of any employee to disagree with policies, procedures and legal interpretations, but cannot and will not tolerate violations of these rules by any employee of the district. Each of us up here, are elected to serve this community and take an oath of office to respect and defend the Constitution of the United States and there is no ambiguity or gray area for us in understanding this oath. We will, whenever confronted, follow the laws of our land regardless of personal views or interpretations of these laws. Our employees will do the same. It is our uncompromising expectation that Coach Borden's personal agenda along with his lawyer[']s, does not in any way interfere with this school district. The Board of Education will continue to see that our schools run at the highest of standards and with complete respect for the law and for the rights of all of our students and staff. Any comments that come from sources other than the Board of Education, our counsel or the Superintendent are not official and therefore not necessarily representative of our position.
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October 20, 2005 Board Education Meeting (3)
Paragraph 3
We are a divided nation and have been since the ratification of our Constitution in 1791. Issues of faith are personal and divisive today as they were back then. This meeting and subsequent [Board of Education] meetings are not the forum for such debate, and legal [c]onstitutional rulings are not the purview of the Board of Education. Congress, the President and the Supreme Court make, enforce and interpret the laws and these branches of [g]overnment are the appropriate places to lobby for one's position on these matters, not here. This is not a platform for individual agendas on [c]onstitutional cases that have already been clearly decided. I will therefore preside over this meeting this evening with these thoughts in mind.
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October 20, 2005 Board Education Meeting (4)
Paragraph 4
One of the foundations of our democracy is that the right of someone to express concern or to bring a matter of discomfort to the attention of authority is to be respected and protected. It is not to be vilified and dishonored. Some of the extreme language, hateful emails and inappropriate and inaccurate reporting of this story, has shifted blame onto the blameless and has distorted beyond measure the matter at hand. If we can do one thing together as a community, it should be to stand up in vast numbers and express outrage and concern against those who would cheapen the actions of brave and committed Americans. No person should have to be afraid to express their constitutionally protected individual rights. Hopefully, we can all learn from this experience and move forward with dignity and respect for each other. Thank you.”
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November 21, 2005
Following the issuance of the October 7 guidelines and the Board's statement on October 20, Borden conducted himself in accordance with the School District's new policy for the balance of the school year, notwithstanding the litigation [legal case] he instituted on November 21, 2005.
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Fall 2006 - Fall 2007
Prior to the 2006 football season, Borden sent an email to Sergio Garcia and Randall Nixon, the co-captains of the team for the 2006 season, requesting that they ask the players whether they would like to continue the tradition of praying at the team dinner and prior to the game. In his email request, he told the co-captains that “[w]hatever the players decide to do is fine with me.” He asked the captains to pass on the players’ collective response and to ensure him that they spoke with ALL of the players on the team. Nixon's response indicated that the players voted to continue both the pre-meal and pre-game prayers. Following the grant of summary judgment in his favor in this case, Borden stood and bowed his head during the prayer before the meal, and remained on one knee during the pre-game prayer.
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Procedural History
On November 21, 2005, Borden instituted litigation against the School District, the Board of Education, and Magistro in her capacity as Superintendent (collectively, “the defendants”) in the Superior Court of New Jersey. The defendants filed to remove the suit to the U.S. District Court for the District of New Jersey on December 22, 2005. Rather than seeking to continue to do what he had done for the previous 23 years, Borden sought “to show his respect for his players, respect for The Team Prayers, and respect for East Brunswick's football tradition by engaging in two silent acts during The Team Prayers: (i) bowing his head during grace; and (ii) taking a knee with his team in the locker room.” His complaint alleged that the guidelines and the Board's statement prevented him from undertaking either of these activities.
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Summary Judgement Sought by School System
The School District filed a motion for summary judgment focusing on whether its policy was proper under 1st Amendment jurisprudence, arguing that it did not violate the Free Exercise Clause, and its policy was necessary because Borden's prayer activities violated the Establishment Clause. Borden filed a cross-motion for summary judgment, and expressly stated that he was not asserting a claim under the Free Exercise Clause despite his citation of paragraph 4 of the New Jersey Constitution in his complaint. Borden argued that “his 1st and 14th Amendment U.S. constitutional rights as well as Article 1 ¶¶ 1, 6 of his New Jersey constitutional rights” protect his “symbolic conduct.” Further, Borden argued that the School District's justification for its policy was based on an erroneous interpretation of the Establishment Clause.
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July 26, 2006
The District Court entered an order denying defendants' motion for summary judgment, granting Borden's cross-motion for summary judgment - awarding Borden costs and counsel fees.
The defendants' timely appeal followed.
Ruling
The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1367(a). We have jurisdiction over final judgments of the District Court under 28 U.S.C. § 1291.6 We exercise plenary review over a district court's grant of summary judgment, and will uphold the district court's grant of a summary judgment motion on any basis so long as that basis was previously presented to the district court. Nasir v. Morgan, 350 F.3d 366, 368 (3d Cir.2003). Moreover, “[o]ur review over constitutional issues is plenary.” United States v. One Toshiba Color Television, 213 F.3d 147, 151 (3d Cir.2000).
The District Court found that the School District's policy prohibiting faculty participation in student-initiated prayer was unconstitutional on its face because it was both overbroad and vague. It also found that the policy was unconstitutional in its application to Borden because it violated Borden's constitutional rights to freedom of speech, academic freedom, freedom of association, and due process. Finally, it found that Borden's requested silent acts of bowing his head and taking a knee while his team prayed would not violate the Establishment Clause.
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April 15, 2008
The 3rd Circuit U.S. Court of Appeals overturned the lower U.S. District Court ruling, in favor of the initial defendants.
The United States Court of Appeals for the Third Circuit has appellate jurisdiction over the U.S. district court in the following federal judicial districts:
District of Delaware.
District of New Jersey.
Eastern District of Pennsylvania.
Middle District of Pennsylvania.
Western District of Pennsylvania.
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Borden’s Failed Arguments & Defenses as 3rd Circuit Court of Appeals Reversed the 3rd District Court Decision
“Longstanding Tradition”
“Show of Unity” or
“Team Cohesiveness”
It was a “show of respect” – from several perspectives & viewpoints
Defendants violated his right to Free Exercise of his religious beliefs
He was not establishing a religion, as an arm of the government
Defendants violated his Due Process and Equal Protection rights under 14th Amendment of the U.S. Constitution
The School District's justification for its policy was based on an erroneous interpretation of the Establishment Clause
School Board’s new policies were unconstitutionally overbroad and vague
School Board policy violated his constitutional rights to freedom of speech, academic freedom, freedom of association, and due process
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The Bottom-Line on Borden from 3rd Circuit Court of Appeals
Borden did not pass the (ALL of which must be passed under existing binding precedents):
Lemon Test (1971)
The Endorsement Test (1984)
The Coercion Test (1992)
Nor, the Santa Fe Decision (2000)
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Borden & Counsel Appeal to The U.S. Supreme Court
Supreme Court of the United States Mar 2, 2009 555 U.S. 1212 (2009)
Petition for writ of certiorari to the United States Court of Appeals for the 3rd Circuit denied (A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it) .
Supreme Court declines hearing Borden’s Appeal – Appeals Court Ruling is now “Binding” for U.S. District 3
Many courts in U.S. now using Borden v. East Brunswick case as “Persuasive Precedent” – along w/ Lemon (1971), Lynch (1984), Lee (1992), Santa Fe (2000)
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Relevant Binding Cases to Borden
Engel v. Vitale, 370 U.S. 421 (1962) - A New York State law required public schools to open each day with the Pledge of Allegiance and a nondenominational prayer in which the students recognized their dependence upon God. The law allowed students to absent themselves from this activity if they found it objectionable. A parent sued on behalf of his child, arguing that the law violated the Establishment Clause of the 1st Amendment, as made applicable to the states through the Due Process Clause of the 14th Amendment.
Issue - Whether school-sponsored nondenominational prayer in public schools violates the Establishment Clause of the 1st Amendment. Ruling - Yes (6-1) School-initiated prayer violates 1st Amendment
The Lemon Test – Lemon v. Kurtzman [403 U.S. 602, 612-13 (1971)]
The Endorsement Test – Lynch v. Donnelly [465 U.S. 668, 687-694 (1984]
The Coercion Test – Lee v. Weisman [505 U.S. 577 (1992)]
Santa Fe Independent School District v. Doe 530 U.S. 290 (2000), U.S. Supreme Court ruled that a policy permitting student-led, student-initiated prayer at high school football games violates the Establishment Clause of the 1st Amendment [Binding Precedent for jurisdictions of USA and its territories].
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Lemon v. Kurtzman (Pennsylvania & Rhode Island Cases)
Based on public tax money being distributed to parochial schools to cover teacher salaries and textbook purchases.
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Lynch v. Donnelly (Pawtucket, RI)
The City Christmas Display in a public park included Santa, a decorated tree, a “Season’s Greetings” banner, a reindeer pulling a sleigh, a cutout clown figure, a cutout elephant figure, a cutout teddy bear figure, and a Nativity Scene (a Creche, pronounced Krĕsh)
Ruling - the display did not establish any religion – it depicted historical symbols only, the city did not endorse a religion or Christianity, nor did it inhibit religion. It served a secular purpose and that government was not entangled with religion.
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Lee v. Weisman (Rhode Island Case)
Based on clergy praying at public schools, especially graduation and other mandatory events for students under 18 years of age.
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Santa Fe Independent School District v. Doe
The student body-elected Student Council Chaplain had traditionally prayed over the PA system prior to home football games. A suit was filed by one Catholic family and one Mormon family saying such prayer established a religion contrary to theirs.
Ruling – Student-led prayer violates the Establishment Clause.
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Bill of Rights of the United States of America (1791)
James Madison wrote the amendments, listing specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the 1st Amendment. Congress is prohibited from making laws establishing religion or abridging freedom of speech. The 4th Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant. The Bill of Rights was strongly influenced by Virginia’s Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties. One of many contentious points between Federalists (who advocated a strong national government) and Anti-Federalists (who wanted power to remain with state and local governments) was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty. Madison, then a member of the U.S. House of Representatives, altered the Constitution’s text where he thought appropriate. However, several representatives, led by Roger Sherman, objected, saying that Congress had no authority to change the wording of the Constitution. Therefore, Madison’s changes were presented as a list of amendments that would follow Article VII. The House approved 17 amendments. Of these, the Senate approved 12, which were sent to the states for approval in August 1789. Ten amendments were approved (or ratified). Virginia’s legislature was the final state legislature to ratify the amendments, approving them on December 15, 1791.
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Key Questions to Consider
Should the original Bill of Rights (Initial U.S. Constitution) be set-in-stone (Original Intent) or should it be a “living, breathing, everchanging” document?
Do pre-game meal blessings violate civil rights?
Do team pre-game prayers violate civil rights?
Do public pre-game prayers before athletic events violate civil rights?
Does it violate civil rights of the masses for a person to kneel at mid-sport arena to pray after an event?
Do “moments of silence” violate civil rights?
Can a coach or teacher counsel athletes or students, using principals based on Christianity?
Do churches buying sponsor “advertisement” at sport venues violate civil rights? What about ads in the printed/published game program?
Should the U.S. return to Everson v. Board of Education (1947), and The Establishment Clause Test (1947); or, hold onto: Lemon (1971), Lynch (1984), Lee (1992), Santa Fe (2000), and Borden (2008)?
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