Key Cases: Marcus Borden

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

The case arose in October 2005 after officials at New Jersey’s East Brunswick High School adopted a policy prohibiting representatives of the school district from participating in student-initiated prayer. Although the pre-game prayer had 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, argued that Borden had no constitutional rights of expression or academic freedom in connection with his duties as a teacher and coach. Rutherford Institute attorneys rebutted the school district's claims, insisting that the liberties secured by the U.S. Constitution guaranteed Borden's right to offer a simple, silent gesture of respect, whether he did so by silently bowing his head or taking a knee while his players said their pre-game prayer.

In April 2008, the Court of Appeals sided with the school district, reversing the lower court judgment in favor of Borden by declaring that his expressive conduct was not protected by the First Amendment. It also ruled that "based on the history of Borden's conduct with the team's prayer, his acts cross the line and constitute and unconstitutional endorsement of religion." In response, attorneys for The Rutherford Institute appealed, asking the U.S. Supreme Court to protect the high school football coach's right, but in October of that year the high court refused to hear the case, letting stand a lower court ruling with chilling ramifications for coaches and teachers everywhere.

"This undermines a time-honored tradition that has less to do with religion than it does athletic tradition," said John W. Whitehead, president of The Rutherford Institute, at the time. "It's a sad statement on our rights as Americans that schools are no longer bastions of freedom. We've become so politically correct and secularized that religious individuals who seek the same First Amendment rights as others are censored."