Selective Incorporation: student blog on 1st and 14th Amendment

16 April 2008

New Jersey high school football coach can't bow his head and kneel because he has a history of doing so.

According to the New York Times article, and other numerous reports (links below), Marcus Borden has been the head football coach at East Brunswick High School for over 24 years, and can no longer bow his head or kneel with his team in silence.

In their unanimous opinion the United States Court of Appeals for the Third Circuit reversed the lower courts decision based on the fact that the coach had a history of leading the team in silent prayers.

Borden wanted to silently bow his head during his team’s pre-meal grace and take
a knee with his team during its usual game day locker-room prayer. Borden brought the suit against the East Brunswick School District’s policy prohibiting faculty participation in student-initiated prayer.

I am pleased to hear that Borden plans to appeal to the Supreme Court. This case is a great example of how in certain circumstances many individual rights can conflict, and a proper balance must be found. A federal ruling and opinion could be helpful.

The case involves the freedom of speech, academic freedom, freedom of association, free exercise of religion and due process. The lower district court felt that Borden's silent acts did not violate the Establishment Clause. However, the federal appeals court felt the policy did not violate Borden's rights and further found that his silent acts did violate the Establishment Clause because a reasonable person would view his acts as endorsing religion due to his history of leading prayers in the past.

I agree with Borden's lawyer in the Time's article that the decision is ambiguous because it considers a public official's history. This court ruling essentially restricts a coach from assembling and being associated with his own team, and it appears like --because his acts are silent-- the court is almost trying to get into Borden's head to determine if he is endorsing a certain religion. Keeping the government from crawling into an individual's thoughts and telling them what they can say, think, and do is one of the most fundamental principles in the First Amendment.

Side note: My high school football team had "a moment of silence" before meals and games. The moment had a strong unifying power. We had a great season and ended as State Champs for the first time in 14 years. It was our coach's first season as head coach.

I wonder how coach Borden's team has fared in the last 24 years?

Other Links:
Americans United news release
Courier News Online
Another Courier article
Home News Tribune
A Google search on the subject


skippyn8 said...

ESPN article about Borden and his resignation before the suit was brought in 2005.

mike sweeney said...

I agree with you that it's a dangerous, slippery slope if a court in fact starts to judge the state of mind of a person committing a particular act. It's the manifest behavior, and its impact/potential impact, that counts. BTW, what was your FB team and your position?

skippyn8 said...

The Mountain Crest Mustangs 2001! Believe it or not I was Defensive End/Tight End. I was considered the "12th man" however and played every position at least once except center.

Including quarterback.