Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2008

Borden v. Sch Dist E Brunswick
Precedential or Non-Precedential: Precedential

Docket No. 06-3890




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-3890


              MARCUS A. BORDEN

                          v.

            SCHOOL DISTRICT OF THE
       TOWNSHIP OF EAST BRUNSWICK;
         BOARD OF EDUCATION OF THE
       TOWNSHIP OF EAST BRUNSWICK;
     Dr. JO ANN MAGISTRO, in her capacity as
         Superintendent, School District of the
             Township of East Brunswick,

                         Appellants


   On Appeal from the United States District Court
              for the District of New Jersey
                 (D.C. No. 05-cv-05923)
   District Judge: Honorable Dennis M. Cavanaugh


             Argued October 3, 2007
Before: McKEE, BARRY and FISHER, Circuit Judges.
                   (Filed: April 15, 2008)

Alex J. Luchenitser
Ayesha N. Khan
Richard B. Katskee (Argued)
Americans United for the
 Separation of Church & State
518 C Street, N.E.
Washington, DC 20002

Martin R. Pachman
Scarinci & Hollenbeck
2 Paragon Way
Freehold, NJ 07728
      Attorneys for Appellants

F. Michael Daily, Jr.
The Rutherford Institute
216 Haddon Avenue
Sentry Office Plaza, Suite 100
Westmont, NJ 08108

Ronald J. Riccio (Argued)
McElroy, Deutsch, Mulvaney & Carpenter
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, NJ 07962
      Attorneys for Appellee




                                 2
Marc D. Stern
American Jewish Congress
825 Third Avenue, Suite 1800
New York, NY 10022
      Attorney for Amicus-Appellants,
      American Jewish Congress and The Jewish
      Social Policy Action Network

Pammela S. Quinn
O’Melveny & Myers
1625 I Street, N.W.
Washington, DC 20006
       Attorney for Amicus-Appellants, The
       Interfaith Alliance, The Anti-Defamation
       League, Hadassah, Jewish Women
       International, Muslim Advocates,
       Sikh American Legal Defense and
       Education Fund, Sikh Council on
       Religion and Education, and Union
       Reform Judaism

Steven G. Gey
Florida State University
College of Law
425 West Jefferson
Tallahassee, FL 32306
       Attorney for Amicus-Appellant,
       National Center for Science Education




                              3
Emily B. Goldberg
Gibbons, P.C.
One Gateway Center
Newark, NJ 07102-5310
      Attorney for Amicus-Appellants,
      American Civil Liberties Union,
      American Civil Liberties Union of
      New Jersey, American Civil Liberties
      Union of Pennsylvania, American Civil
      Liberties Union of Delaware,
      American-Arab Anti-Discrimination
      Committee, American Ethical Union,
      American Jewish Committee, Hindu
      American Foundation, and The
      Unitarian Universalist Association



                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Marcus Borden, the head football coach at East
Brunswick High School, would like to engage in the silent acts
of bowing his head during his team’s pre-meal grace and taking
a knee with his team during a locker-room prayer. He brought
suit seeking a declaratory judgment that the East Brunswick
School District’s policy prohibiting faculty participation in
student-initiated prayer was unconstitutionally overbroad and
vague, and violated his federal and state constitutional rights to

                                4
freedom of speech, academic freedom, freedom of association,
and due process. On cross-motions for summary judgment, the
District Court for the District of New Jersey declared the policy
unconstitutional on all grounds, and it additionally held that
Borden’s silent acts would not violate the Establishment Clause
of the First Amendment. However, we hold that the policy is
not unconstitutional on its face or as applied to Borden.
Additionally, we hold that Borden’s silent acts violate the
Establishment Clause because, when viewing the acts in light of
Borden’s twenty-three years of prior prayer activities with the
East Brunswick High School football team during which he
organized, participated in, and even led prayer activities with his
team, a reasonable observer would conclude that Borden was
endorsing religion when he engaged in these acts. Therefore,
and for the reasons set forth in further detail below, we will
reverse the District Court’s order.

                                I.

                       A. Factual History

                 1. 1983-2005 (Pre-litigation)

       Marcus Borden is the head football coach at East
Brunswick High School (“EBHS”), and he has held that position
since 1983.1 During his tenure at EBHS, Borden engaged in two
pre-game prayer activities that occurred (1) at the team dinner;
and (2) while taking a knee in the locker room.


       1
        Borden is also a tenured teacher of Spanish at EBHS.

                                5
        As part of the 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
to 1997, a local minister, Reverend Smith, said a pre-meal
prayer. However, in 1997, the athletic director told Borden that
Reverend Smith could not continue to say 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 to have the students read Reverend Smith’s prayer.
Borden instead began a new tradition: he 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 or 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
in a prayer. Borden described an example of the prayer he said
as follows:

       “[D]ear lord, please guide us today in our quest in
       our game, our championship. Give us the courage
       and determination that we would need to come
       out successful. Please let us represent our

                               6
       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 this tradition for twenty-three seasons,
beginning when Borden became the coach of the EBHS football
team in 1983 and continuing until the 2005 football season.

        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 that she thought it
was inappropriate that Borden requested that everyone stand for
the prayer and that 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.

        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. At the
team dinner on September 30, 2005, he continued the prayer
traditions in the manner described above. 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.

                               7
        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.” The attached guidelines, which
stated that they were not “exhaustive or final,” were as follows:

       “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




                               8
     B.     The prayer activity does not
            interfere with the normal operations
            of the school district.

     This would mean that, for example, if a
     student or a group of students wish to
     engage in a prayer before or after their
     meal in the cafeteria during their lunch
     period they would have a right to do so,
     provided that the activity in which they are
     engaged does not disrupt the normal
     operation and decorum of the other
     students eating in the cafeteria. Also, if
     student athletes on their own decide to
     hold a prayer huddle before a game, after
     a game, or during half-time, they have a
     right to do so.

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.

3.   Representatives of the school district, as
     referenced above, cannot participate in

                      9
             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.”2

That same evening, Borden resigned, effective immediately, and
he did not attend the football game scheduled for that evening.
However, on October 17, 2005, Borden withdrew his resignation
and agreed to abide by the School District’s policy for the
remainder of the 2005 season.

       The Board held a meeting on October 20, 2005. Michael
Baker, the president of the Board, read a prepared statement
(“the Board’s statement”). In full, it read:

             “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

      2
       A similar memorandum was sent out to the entire staff
on October 10.

                              10
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.

        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.

                        11
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.

       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.

         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

                        12
       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.”3

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 he instituted on
November 21, 2005.

                        2. 2006-Present

        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

       3
        Following the media hype created by this case, EBHS
student internet message boards were bombarded with posts,
several of which included derogatory comments based on
religion and race.

                                13
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’ 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 prayer. 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.

                     B. Procedural History

        On November 21, 2005, Borden instituted this 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 removed the suit to the United States 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
twenty-three 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.

        Borden’s complaint presented two causes of action.
Under Count 1, Borden alleged that the defendants violated his
rights as embodied in Articles 1, 4, 6 and 18 of the New Jersey



                               14
Constitution.4 Count 2 alleged that the defendants violated his
Due Process and Equal Protection rights under the Fourteenth
Amendment of the United States Constitution. For both of these
counts, Borden sought the same relief: (1) a declaratory
judgment stating that the guidelines issued on October 7 and the
Board’s statement on October 20 were unconstitutional based on
the respective constitutional provisions; (2) preliminary and
permanent injunctions preventing the defendants from enforcing
the guidelines and the Board’s statement, or from “taking any
action of any kind, by way of complaint or otherwise, against
Coach Borden” for his silent acts of bowing his head and taking
a knee during the team’s prayers; and (3) an order vacating the
guidelines and the Board’s statement.

        The School District filed a motion for summary judgment
that primarily focused on whether its policy was proper under
First 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

       4
        In fact, it appears that Borden was not referring to
Articles of the New Jersey Constitution, but paragraphs under
Article 1. While Article 1 of the New Jersey Constitution
establishes individual rights, Article 4 establishes the powers of
the New Jersey Legislature, Article 6 establishes the powers of
the judiciary in New Jersey, and Article 18 does not exist. In
contrast, the relevant paragraphs of Article 1 provide the
following rights: liberty (para. 1), free exercise of religion (para.
4), freedom of speech (para. 6), and freedom of association
(para. 18). See N.J. Const. art 1, ¶¶ 1, 4, 6, 18.

                                 15
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
First and Fourteenth Amendment United States constitutional
rights as well as Article 1 ¶¶ 1, 6 of his New Jersey
constitutional rights” protect his “symbolic conduct.”5 Further,
Borden argued that the School District’s justification for its
policy was based on an erroneous interpretation of the
Establishment Clause.


       5
        Borden did not specifically assert a claim as to his rights
under the First Amendment of the United States Constitution.
His complaint did, however, state a claim as to his Due Process
rights under the Fourteenth Amendment of the United States
Constitution. Thus, Borden arguably asserted a claim under the
First Amendment because an individual’s free speech rights
under the First Amendment apply to the states through the Due
Process Clause of the Fourteenth Amendment. See Gitlow v.
New York, 

, 666 (1925). The defendants have not
argued that Borden did not assert a claim under the First
Amendment. Even if they had, however, it would not change
our analysis, because Borden stated a claim under the free
speech clause of the New Jersey Constitution, which has
protections that are “generally interpreted as co-extensive with
the First Amendment.” Twp. of Pennsauken v. Schad, 

, 1169 (N.J. 1999) (citing Hamilton Amusement Ctr. v.
Verniero, 

(N.J. 1998)). Thus, while we do not
reach a conclusion on whether he stated a free speech claim
under the First Amendment, we will assume that he did for the
purposes of our analysis.

                                16
       On July 25, 2006, the District Court heard oral argument
on the summary judgment motions, and following argument,
Judge Cavanaugh entered his decision on the record from the
bench. He stated:

      “I agree that an Establishment Clause violation
      would occur if the coach initiated and led the
      activity, but 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.

             I believe to preclude the Plaintiff from
      such an action would be a violation of his rights.
      I believe the Directives as stated are overbroad
      and vague. To threaten the Plaintiff with
      insubordination if he is to participate places him
      in an untenable position.

             I find that the Plaintiff’s request to bow his
      head in silence and take a knee do not violate the
      Establishment Clause of the Constitution.

              I find, further, that the Defendants’
      directive regarding the Plaintiff’s nonparticipation
      is over broad and vague, and violates the
      Plaintiff’s First and Fourteenth Amendment rights
      to free speech, freedom of association, academic
      freedom, as well as New Jersey’s constitutional
      rights to liberty and free speech.

                               17
              Accordingly, since there are no issues of
       material fact left in dispute, as a matter of law, I
       deny the Defendants’ motion and grant the
       Plaintiff’s motion for summary judgment.”

On July 26, 2006, the District Court entered an order denying
the defendants’ motion for summary judgment, granting
Borden’s cross-motion for summary judgment, and awarding
Borden costs and counsel fees. The defendants’ timely appeal
followed.

                                II.

       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

       6
        Borden argues that we do not have jurisdiction over this
appeal because it has become moot. He argues that he only
sought relief for the 2006 season, and because his coaching
contract is subject to annual renewal, a live controversy, as
required by Article III, Section 2 of the United States
Constitution, no longer exists. However, this appeal contains
the factors necessary to warrant a finding that it is not moot. See
City of Erie v. Pap’s A.M., 

, 288 (2000). First, the
School District has an ongoing injury. See 

see also
Congregation Kol Ami v. Abington Twp., 

, 132 (3d
Cir. 2002). The District Court’s decision did not pertain to the
2006 season alone. Instead, the District Court found that the
guidelines were overbroad and vague, which invalidates the

                                18
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, 

, 368 (3d Cir. 2003). Moreover,
“[o]ur review over constitutional issues is plenary.” United
States v. One Toshiba Color Television, 

, 151 (3d
Cir. 2000).

                               III.

       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


guidelines as applied to any faculty member. See Virginia v.
Hicks, 

, 118-19 (2003) (stating that where a court
determines that a statute or policy is overbroad, that ruling
“invalidate[s] all enforcement of that law”). Second, Borden
continues to have an interest in the present case. See Pap’s

. He is likely to be rehired as the football
coach each year because the School District has rehired him
each year for twenty-five consecutive years, and more
importantly, the School District’s guidelines affect him at all
times as a tenured teacher at EBHS. Finally, “this is not a run
of the mill voluntary cessation case . . . [because] it is the
plaintiff who, having prevailed below, now seeks to have the
case declared moot.” See 

Pap’s A.M., we have an
interest in preventing litigants from “manipulat[ing] the Court’s
jurisdiction to insulate a favorable decision from review.” 

case before us is not moot, and we have
jurisdiction to review it.

                               19
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.
We address each of these issues in turn.

               A. Overbreadth and Vagueness

      Borden challenged the guidelines and the Board’s
statement on their face, arguing that they are unconstitutionally
overbroad and vague. The District Court agreed. For the
reasons that follow, the District Court’s conclusions are
erroneous.

                        1. Overbreadth

        Under the First Amendment overbreadth doctrine, a
person may challenge a statute or policy, even though it is not
unconstitutional as applied to that particular person, because
“[its] very existence may cause others not before the court to
refrain from constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 

, 612 (1973). A court
must consider that the overbreadth doctrine is “strong medicine”
that should be used “sparingly and only as a last resort.” 

As a result, “a single impermissible application” is
insufficient to deem a statute or policy invalid, New York v.
Ferber, 

, 772 (1982) (internal quotation marks and
citation omitted), and instead, “a law should not be invalidated



                               20
for overbreadth unless it reaches a substantial number of
impermissible applications.” 

       Thus, the proper inquiry is whether a statute or policy
“prohibits a substantial amount of protected expression.”
Ashcroft v. Free Speech Coalition, 

, 244 (2002).
To determine how broad the statute or policy sweeps, we look
to four factors: (1) “the number of valid applications,” (2) “the
historic or likely frequency of conceivably impermissible
applications,” (3) “the nature of the activity or conduct sought
to be regulated,” and (4) “the nature of the state interest
underlying the regulation.” Gibson v. Mayor & Council of
Wilmington, 

, 226 (3d Cir. 2004) (internal
quotation marks and citation omitted).

       Based upon the Gibson factors, we conclude that the
School District’s guidelines and the Board’s statement are not
unconstitutionally overbroad. Borden argues that this policy
will reach beyond impermissible faculty involvement in prayer
and, in addition, will prohibit permissible faculty religious
exercise. We will address the two relevant paragraphs of the
guidelines and the Board’s statement separately.

        Paragraph two of the guidelines prohibits a school
official from “encourag[ing], lead[ing], initiat[ing], mandat[ing],
or otherwise coerc[ing]” students into prayer. For this
paragraph, the number of valid applications is immense. The
Supreme Court has held that a school district is in violation of
the Establishment Clause where “the degree of school
involvement makes it clear that the [prayer activities] bear the
imprint of the State and thus put school-age children who

                                21
objected in an untenable position.” Santa Fe Indep. Sch. Dist.
v. Doe, 

, 305 (2000) (internal quotation marks and
citation omitted). Thus, if a school “affirmatively sponsors the
particular religious practice of prayer,” it is in violation of the
Establishment Clause. 

Paragraph two of the
guidelines strikes at the heart of this prohibition. Generally, if
a school official is engaging in student prayer to the extent that
they are leading it, initiating it, or requiring it, the school
official, and thus the school district, is violating the
Establishment Clause. In fact, Borden does not point to a
possible misapplication of this portion of the guidelines.
Moreover, the Supreme Court has noted that “compliance with
the Establishment Clause is a state interest sufficiently
compelling to justify content-based restrictions on speech.”
Capitol Square Review & Advisory Bd. v. Pinette, 

,
761-62 (1995). Therefore, paragraph two of the guidelines is
not unconstitutionally overbroad.

        Paragraph three of the guidelines prohibits a school
official from “participat[ing]” in any student-initiated prayer.
This paragraph of the guidelines similarly has numerous valid
applications. A school district also violates the Establishment
Clause if “a reasonable observer familiar with the history and
context of the display would perceive the display as a
government endorsement of religion.” Modrovich v. Allegheny
County, 

, 401 (3d Cir. 2004); see also County of
Allegheny v. Am. Civil Liberties Union Greater Pittsburgh
Chapter, 

, 596 (1989) (adopting the endorsement
test). Not every religious display of a school official will have
the necessary “history and context” to be an Establishment
Clause violation, but to the extent that this paragraph is

                                22
overbroad, it is not so substantial as to make the guidelines
invalid. Rather, any concern about overbreadth may “be cured
through case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied.” 

. Moreover, the School District is equally as interested
in avoiding Establishment Clause violations in this way.
Therefore, paragraph three of the guidelines is not
unconstitutionally overbroad.

        Borden also takes issue with the Board’s statement that
it “cannot and will not tolerate violations of these rules by any
employee of the district,” arguing that the statement does not
describe what conduct it prohibits. However, the statement
began, “[w]e respect the rights of any employee to disagree with
policies, procedures and legal interpretations.” It is obvious to
us that the rules to which the Board is referring are the recently
promulgated guidelines that had been distributed to all faculty
only ten days before the October 20 meeting. Because the
October 20 statement is simply referring to teachers following
the School District’s guidelines, the same analysis applies to it
as to the guidelines themselves. For the same reasons, we find
that the Board’s statement is not unconstitutionally overbroad.

                          2. Vagueness

        In a void-for-vagueness challenge, we must ensure that
a statute or standard is fair in that it is not so vague that a party
would not know what conduct is prohibited. San Filippo v.
Bongiovanni, 

, 1136 (3d Cir. 1992). Thus, a
statute is unconstitutionally vague when “men of common
intelligence must necessarily guess at its meaning.” Broadrick,

                                 

(quoting Connally v. Gen. Constr. Co., 

, 391 (1926)). The inquiry is completed on a case-by-case
basis, and the party opposing the statute or standard must show
that it is vague as applied to him. San 

.
In completing this analysis, it is important to note that, in the
civil context, statutes need not be as precise as in the criminal
context and are, therefore, less likely to be invalidated under a
void-for-vagueness challenge. 

Borden claims that
the use of the word “participate” renders the guidelines
unconstitutionally vague. Standing alone, the word “participate”
may be vague. However, “participate” cannot be read in
isolation, but must be read in the context of the entire paragraph
discussing the prohibition on faculty participation with student-
initiated prayer. The paragraph prohibiting faculty participation
elaborates on what it considered participation by quoting from
the Fifth Circuit’s decision in Doe v. Duncanville Independent
School District, 

(5th Cir. 1995). Thus, the faculty,
including Borden, knew that the prohibition on participating in
prayer with students included joining hands in prayer or
demonstrating some approval of or solidarity with students’
prayer. Such a description is “‘sufficiently explicit to inform
those who are subject to it what conduct on their part will render
them liable to its penalties . . . consonant alike with ordinary
notions of fair play and the settled rules of law.’” San 

(quoting 

).

       Moreover, we find support that the word “participate” is
not vague from the Supreme Court’s decision in Board of
Education of Westside Community Schools v. Mergens, 

(1990). In Mergens, a school district refused access to a
Christian student group, and the group brought suit arguing that

                               24
the school district was in violation of the Equal Access Act, 20
U.S.C. §§ 4071 et seq., which prohibits public secondary
schools from denying equal access to student 

. The school district responded that the Act violated
the Establishment Clause and thus was unconstitutional. 

However, the Court held that the Act did not violate the
Establishment Clause. 

In reaching its decision, the
Court relied extensively on a provision of the Act that limited
the faculty involvement permissible in any student religious
groups to a “nonparticipatory 

, 251-
53 (citing 20 U.S.C. § 4071(c)(3)). The Act does not define
“nonparticipatory capacity,” and the Court did not define it
either. Nevertheless, the Court found that the provision
removed the risk of both “official state endorsement or
coercion,” 

and excessive entanglement with religion,

because it removed the possibility that school
officials would be “participating” in the students’ religious
activities.    Considering the Court’s reliance on the
“nonparticipatory” provision of the Act without a definition of
what the word “participate” means, it is difficult to conceive
how the School District’s guidelines could be so vague that
people of common intelligence could not “guess at [their]
meaning.” 

. Therefore, for all of the
above reasons, we find that the guidelines are not
unconstitutionally vague.

          B. As-Applied Constitutional Challenges

        In addition to arguing that the policy prohibiting faculty
participation in student-initiated prayer was unconstitutional on
its face, Borden also challenged the policy as it applied to him,

                               25
arguing that it violated his constitutional rights to freedom of
speech, academic freedom, freedom of association, and due
process. The District Court agreed. Again, for the reasons that
follow, the District Court’s conclusion is erroneous.

                     1. Freedom of Speech

       The first issue is whether the School District’s guidelines
and the Board’s statement violated Borden’s right to freedom of
speech under the New Jersey Constitution and the First
Amendment of the United States Constitution.7 The First
Amendment states that “Congress shall make no law . . .
abridging the freedom of speech . . . .” U.S. Const. amend. I.
This provision applies to the states through the Due Process
Clause of the Fourteenth Amendment. See Gitlow v. New York,

, 666 (1925). The Supreme Court has held that the
First Amendment prohibits the government from “regulat[ing]
speech based on its substantive content or the message it
conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 

, 828 (1995).

       The question is whether the First Amendment protects
Borden, the employee of a public school system, when he bows
his head and takes a knee with his team while they pray. As our
case law indicates, “the day has long since passed when
individuals surrendered their right to freedom of speech by

       7
       We will use federal constitutional principles of free
speech rights in our analysis because the free speech clause of
the New Jersey Constitution “is generally interpreted as co-
extensive with the First Amendment.” 

.

                               26
accepting public employment.” Sanguigni v. Pittsburgh Bd. of
Pub. Educ., 

, 396 (3d Cir. 1992) (citing Connick v.
Myers, 

, 143-44 (1983); Pickering v. Bd. of Educ.,

, 568 (1968)). However, while “public employees
enjoy substantial free speech rights,” 

those rights are
limited. See 

; 

.

        To determine whether the First Amendment protects a
public employee’s speech, the Supreme Court has established a
two-prong test. Under the first prong, the court must determine
whether the employee is speaking upon matters of public
concern. 

. If the employee’s speech
relates only to his or her personal interest, the First Amendment
does not protect the speech because “government officials
should enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the First
Amendment.” 

However, if the employee’s speech is
on a matter of public interest, the second prong is triggered and
requires the court to engage in the Pickering balancing test. See

The balancing is “between the interests of the [public
employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” 

.8 Because

       8
       We reject Borden’s argument that we should apply the
Supreme Court’s standard in Tinker v. Des Moines Independent
Community School District, 

(1969), rather than the
standard set forth in Pickering and Connick. In Tinker, the
Supreme Court specifically identified both students and teachers

                                27
we find that Borden’s speech was not on a matter of public
concern, we do not need to engage in the Pickering balancing
test.




as those who have First Amendment rights, stating that neither
students nor teachers “shed their constitutional rights to freedom
of speech or expression at the schoolhouse gate.” 

However, the Court in Tinker was dealing with a question of the
protections given to a student’s speech, not a teacher’s speech.

(holding that students have free speech rights unless
the student’s conduct “for any reason . . . materially disrupts
classwork or involves substantial disorder or invasion of the
rights of others”); see also Hazelwood Sch. Dist. v. Kuhlmeier,

, 270-71 (1988) (noting that Tinker involved a
question of student speech). More importantly, Tinker did not
alter the test that the Supreme Court established to evaluate the
speech of a public employee in 

, and
then 

. Pickering involved a teacher
who wrote a letter to a newspaper expressing concern regarding
the management of the school district, and the Court held that
the teacher, as a public employee, had a right to freedom of

. Connick elaborated on the proper
test for the speech of a public employee. 

-
50. Therefore, our application of Pickering and Connick is
appropriate in these circumstances.

                               28
                  i. Matter of Public Concern9

        Under the test established in Pickering and Connick, we
must first determine whether Borden’s silent acts of expression
are on a matter of public concern. Borden alleges two interests
that his silent acts serve: (1) providing the team with feelings of
unity and increasing team morale; and (2) respecting the
players’ prayers.10 For the reasons that follow, we find that

       9
         Borden argues that we may not address this issue
because the defendants did not argue that the speech was not on
a matter of public concern in their initial brief or their reply brief
before the District Court. However, “‘[w]hen an issue or claim
is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper
construction of governing law.’” Tenafly Eruv Assoc., Inc. v.
Borough of Tenafly, 

, 158 n.15 (3d Cir. 2002)
(quoting Kamen v. Kemper Fin. Servs., Inc., 

, 99
(1991)). Thus, we must engage in a proper constitutional
analysis of whether Borden has a free speech right to engage in
his proposed silent acts regardless of what legal theory he or the
defendants argued at any point in this litigation. Here, a proper
constitutional analysis requires us to consider whether Borden’s
speech was on a matter of public concern before we make any
other determinations. Therefore, not only are we not prohibited
from engaging in step one of the Connick test, we must do so.
       10
         To the extent that Borden argues that his speech
protects student-initiated prayer, his argument is unfounded. He
would like to bow his head during a pre-meal grace and take a

                                 29
Borden’s stated interests are personal to Borden and his team
and are not matters of public concern.

        Connick instructs that “[w]hether an employee’s speech
addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by
the whole 

.11 The content of speech
on a matter of public concern generally addresses a social or
political concern of the community. For example, we have
stated that speech is on a matter of public concern if it “relate[s]
to broad social or policy issues,” including expressing the
desirability of assassinating the President or complaining about
racial discrimination. 

(citing Rankin
v. McPherson, 

, 386-87 (1987); Givhan v. W. Line
Consol. Sch. Dist., 

(1979)). We have also
categorized speech “implicat[ing] the discharge of public
responsibilities by an important government office, agency, or
institution” as speech addressing a matter of public concern. See

(citing cases involving speech that touched on the
pressure to work on political campaigns, the allocation of funds
to certain school programs, government corruption, and the


knee with his team before a game. These silent acts do nothing
to protect student-initiated prayer because the students are able
to engage in student-initiated prayer regardless of Borden’s
silent acts. Thus, we find his argument unavailing.
       11
         Contrary to Borden’s contention, this question is one of
law, and thus is properly considered by a reviewing court.

n.7 (“The inquiry into the protected
status of speech is one of law, not fact.”).

                                30
lowering of academic standards and its effects); see also Holder
v. City of Allentown, 

, 195 (3d Cir. 1993) (stating
that speech is on a matter of public concern where “the speaker
seeks to ‘bring to light actual or potential wrongdoing or breach
of public trust’ on the part of government officials” (quoting

)). Finally, the content of speech is on
a matter of public concern where it “relate[s] primarily to the
way in which a government office [i]s serving the public.”

(citing Czurlanis v. Albanese, 

(3d Cir. 1983), in which a county employee criticized
the state and county governments at a meeting of the county’s
governing body regarding how he thought those governments
were wasting taxpayer’s money). In short, the content of these
types of speech goes to the core of the First Amendment because
it adds to the debate on matters of public importance.

        In contrast, the content of an employee’s speech is not a
matter of public concern where the comments are only with
regard to the morale of the office. See 

(holding that the employee’s questionnaire regarding office
morale was not a matter of public concern because she was
merely gathering “ammunition” against her supervisors);

(holding that an employee’s
statements regarding morale alone do not rise to the level of a
matter of public concern). In Connick, the Supreme Court noted
that the level of morale in a government office may relate to the
efficiency of that office, and the public may be interested in that

. However, where the employee’s
efforts did not focus on relaying that information to the public,
it could not be speech on a matter of public concern. 

& n.8.

                                31
        In the present case, Borden portrays the content of his
conduct as secular gestures intended to promote solidarity, help
form the team into a cohesive family unit, and show respect for
the players’ prayers. The content of his message, however, is
not a matter of public concern. Borden does not perform these
silent acts as part of a broad social or policy statement of being
able to take a knee or bow his head in public.12 Additionally, he
is not shedding light on any matter with regard to EBHS’s
operations that would be important to the public because his
silent acts do not touch upon the way in which a government
institution is discharging its responsibilities. See, e.g.,

(finding that criticisms of a school
district’s allocations of funds is speech on a matter of public
concern). Instead, Borden expressly argues that he wishes to
engage in this speech out of concern for his team’s morale.
However, he is not trying to bring public morale issues within
the school’s administration, but is merely trying to bolster his
team by demonstrating that “this team is a family,” which does
not amount to a matter of public concern. See Connick,
teacher’s criticism of the school district in a letter to a
newspaper).

        In the present case, the form and context of Borden’s
silent acts only reinforce its non-public nature. Borden’s speech
does not occur in any type of official proceeding, and even more
importantly, Borden’s speech does not extend into any type of
public forum. In fact, Borden himself admits that the bowing of

       12
        Borden does not allege that his silent acts are religious
speech that is on a matter of public concern, and we do not reach
that question.

                               32
his head and taking of a knee occur in private settings, namely
at an invitation-only dinner and in a closed locker room. Again,
we find further support for this decision in the Sixth Circuit’s
opinion in Dambrot, where the court noted the private nature of
the coach’s message to his players because the coach’s pep talk
was given in a locker room for the private consumption of his

. Thus, we conclude that as in
Dambrot, the bowing of Borden’s head and taking a knee are
meant for the consumption of the football team only. Therefore,
Borden’s expressive conduct of bowing his head and taking a
knee are not matters of public concern triggering protection of
his right, as a public employee, to freedom of speech.13

       13
          Based on our prior decisions, as well as the decisions of
other courts of appeals, Borden’s actions do not constitute
speech on a matter of public concern regardless of the
application of the Supreme Court’s most recent case in the line
of cases on the free speech rights of public employees. See
Garcetti v. Ceballos, 

(2006). In Garcetti, the
Court considered whether the First Amendment protects a public
employee’s speech when the employee speaks pursuant to his or
her official duties. 

It held that the analysis
established by Pickering and its progeny applies only when an
employee speaks as a citizen. 

First Amendment
simply does not protect speech made pursuant to the employee’s
official duties. 

its conclusion, the Court
expressly stated that it left the determination of whether this
analysis would apply in the educational context for another day.
See 

(“We need not, and for that reason do not, decide
whether the analysis we conduct today would apply in the same
manner to a case involving speech related to scholarship or

                                33
                 ii. Pickering Balancing Test

        We find it unnecessary to engage in the Pickering
balancing test in the present case because Borden does not have
a free speech right that would trigger the analysis. In order to
utilize the balancing test, the public employee must have a free
speech right to weigh against the government’s interest in
prohibiting the speech. However, Borden’s silent acts of
bowing his head and taking a knee are not on matters of public
concern so he does not have a free speech right to trigger the
balancing test. For the above reasons, we conclude that the
guidelines and the Board’s statements did not violate Borden’s
free speech rights under the First Amendment of the United
States Constitution and under the New Jersey Constitution.

                    2. Academic Freedom

       Borden argues that the right to academic freedom affords
him the right to exercise professional judgment in teaching his
players respect for others, or as he calls it, “Character
Education.” In making this argument, Borden specifically
points out that he is both a football coach and a tenured teacher
at EBHS, and states that “[he] believes in teaching [the players]
how to be persons of good character and principle.”


teaching.”). If Garcetti applied to this case, Borden’s speech
would not be protected as it was made pursuant to his official
duties as a coach of the EBHS football team and not as an
ordinary citizen. However, even if Garcetti does not apply in
the educational context, Borden’s conduct is not on a matter of
public concern for the reasons just described.

                               34
        We have held that a teacher’s in-class conduct is not
protected speech. Bradley v. Pittsburgh Bd. of Educ., 

, 1176 (3d Cir. 1990) (“Although a teacher’s out-of-class
conduct, including her advocacy of particular teaching methods,
is protected, her in-class conduct is not.” (internal quotation
marks and citations omitted)). The rationale for this holding is
that the teacher is acting as the educational institution’s proxy
during his or her in-class conduct, and the educational
institution, not the individual teacher, has the final determination
in how to teach the students. See Brown v. Armenti, 

, 74-75 (3d Cir. 2001).

       In order to determine if the teacher’s conduct is
considered in-class conduct, we must determine whether the
teacher is engaging in one of the “four essential freedoms” that
constitute academic freedom. 

The “‘four essential
freedoms’” include the right of an educational institution “to
choose ‘who may teach, what may be taught, how it shall be
taught, and who may be admitted to study.’” Edwards v. Cal.
Univ. of Pa., 

, 492 (3d Cir. 1998) (quoting Regents
of Univ. of Cal. v. Bakke, 

, 312 (1978)). Based on
this analysis, we have previously determined that a teacher’s in-
class conduct includes choosing one’s own teaching methods,

utilizing one’s own “classroom management
technique,” 

, and assigning grades to
a student, 

.

       In the case before us, Borden concedes that the silent acts
of bowing his head and taking a knee are tools that he uses to
teach his players respect and good moral character. Thus, by his
own admission, his coaching methods are pedagogic. As a

                                35
result, he is acting as a proxy for the School District, and the
School District may choose both how its students are taught and
what its students are taught. Here, the School District adopted
Pachman’s guidelines because it determined that Borden’s
pedagogic methods were inappropriate. As evidenced by this
continued litigation, the School District continues to find
Borden’s pedagogic methods of teaching his players respect by
engaging in his silent acts inappropriate. While Borden
certainly has the right to voice his disagreement with the School
District’s policy, in accord with our past precedent, he does not
have a right to act in contravention of the School District’s
policy based upon a right to academic freedom.14 For the above
reasons, the District Court erred in holding that the guidelines
and the Board’s statement violated Borden’s right to academic
freedom.

       14
         Borden alleges that a decision that he does not have the
academic freedom to engage in these acts amounts to controlling
his mind.       However, our precedent has consistently
demonstrated that it is the educational institution that has a right
to academic freedom, not the individual teacher. See, e.g.,
Brown v. Armenti, 

, 75 (3d Cir. 2001). The teacher,
in turn, has the right to speak on matters of public concern,
including advocating certain pedagogic methods. See Edwards
v. Cal. Univ. of Pa., 

, 491 (3d Cir. 1998)
(“[A]lthough [a teacher] has a right to advocate outside of the
classroom for the use of certain curriculum materials, he does
not have a right to use those materials in the classroom.”).
However, the teacher cannot act in contravention of his or her
educational institution’s in-class policies in the name of
academic freedom.

                                36
                  3. Freedom of Association

       Borden’s complaint also alleged, and the District Court
held, that the School District’s guidelines and the Board’s
statement violated Borden’s right to freedom of association.
Specifically, he asserts that First Amendment jurisprudence
demonstrates that the policy infringes on his “right to associate
with his players by forcibly segregating [him], both physically
and mentally, from his players while they engage in the
important team act of saying pre-game prayers.” However, we
find this argument unavailing.

        While the Supreme Court has held that the Constitution
protects certain relationships, those protected relationships
require a closeness that is not present between a high school
football coach and his team. The Court has not limited the
protection to familial relationships, but generally the protected
relationships include “marriage, the begetting and bearing of
children, child rearing and education, and cohabitation with
relatives.” See Bd. of Dirs. of Rotary Int’l v. Rotary Club, 

, 545 (1987) (citations omitted); 

(not
extending the protection to the Rotary Club). We do not doubt
that football coaches have a special relationship with the players
on their team. However, the relationship is typically not so
close as to involve “‘not only a special community of thoughts,
experiences, and beliefs but also distinctively personal aspects
of one’s life.’” 

(quoting Roberts v. U.S. Jaycees, 

, 619-20 (1984)). Therefore, we find that the guidelines
prohibiting him from participating in the players’ prayer
activities do not interfere with his freedom of association rights,



                                37
particularly because he is violating the Establishment Clause
while doing so. See infra Part III.C.15

                         4. Due Process

       Borden also argues that the guidelines and the Board’s
statement violated his rights to due process. In the context of
school district policies, we have previously stated that the same

       15
          While Borden’s argument is not entirely clear, he may
also be asserting an expressive association claim. To the extent
that Borden makes this argument, we deem it to fail. The
football team must be an “expressive association” for it to fall
within the ambit of the First Amendment’s protection. See Boy
Scouts of Am. v. Dale, 

, 648 (2000). To be an
“expressive association,” the group does not need to be an
advocacy group, but it “must engage in some form of
expression, whether it be public or private.” 

Court has held that the Boy Scouts engage in expressive
association because the organization seeks to instill values in the
youth members. 

         Borden argues that, as a football coach, he similarly
instills values in the members of his team. However, unlike the
Boy Scouts in Dale, Borden is instilling values in the team as
part of his duties as a public school employee and not as part of
a private association. As discussed in part III.C of this opinion,
see infra, the School District has the right to issue its guidelines,
particularly because it needed to prevent Borden from violating
the Establishment Clause. Therefore, we find any expressive
association argument that Borden is attempting to make to be
invalid.

                                 38
test for vagueness applies to a procedural due process claim.

. Thus, a rule prohibiting conduct
must not be “in terms so vague that people of common
intelligence must guess as to its meaning . . . .” 

by the discussion above, the guidelines and the Board’s
statement were not unconstitutionally vague. 

Part
III.A.2.

       Therefore, Borden must point to a fundamental right that
he has which the policy infringed upon in order to establish a
due process violation. He can do no such thing. Borden tries to
cite to federal case law regarding privacy rights, such as
Griswold v. Connecticut, 

(1965), and Lawrence v.
Texas, 

(2003), to argue that the School District has
intruded upon his privacy, thoughts, autonomy, desires and
wishes. He claims that the School District’s requirement that he
not engage in taking a knee and bowing his head degraded him
as a person and humiliated him in front of his team. However
impassioned Borden’s arguments may be, they lack any basis in
the law. Borden has no interest – privacy, liberty, or otherwise
– in behavior that violates the Establishment Clause.16 For these

       16
         Borden attempts to argue that the New Jersey
Constitution provides him greater due process protections than
the U.S. Constitution. Under the New Jersey Constitution,
claims involving fundamental rights are to be analyzed using a
balancing test, “consider[ing] the nature of the affected right, the
extent to which the governmental restriction intrudes upon it,
and the public need for the restriction.” Greenberg v.
Kimmelman, 

, 302 (N.J. 1985). However, the
balancing here has the same result as under federal

                                39
reasons, the guidelines and the Board’s statement did not
infringe on Borden’s due process rights.

           C. The School District Had a Right to
       Adopt the Guidelines Because It Was Concerned
          About Establishment Clause Violations.

        As discussed above, the School District’s guidelines and
the Board’s statement were not unconstitutional on their face
and did not violate Borden’s constitutional rights. We have
previously held that, where an official at a public school does
not have a First Amendment right to his or her expression, the
school district’s policy does not need to be “reasonably related
to a legitimate educational interest.” See 

. Thus, because Borden has no First Amendment right to his
silent acts, we do not need to analyze the policy under this
standard. However, even if we applied that standard to the
present case, we would arrive at the same result: the School
District had a right to adopt its policy.

        The School District has a legitimate educational interest
in avoiding Establishment Clause violations, and the guidelines
are reasonably related to that interest. The Supreme Court has
stated that “compliance with the Establishment Clause is a state
interest sufficiently compelling to justify content-based
restrictions on speech.” 

; see also


constitutional principles because the public need – to prohibit
Establishment Clause violations, which as discussed below, are
present in this case – is so great. Therefore, Borden’s argument
fails.

                               40
Locke v. Davey, 

, 730 n.2 (2004) (Scalia, J.,
dissenting) (“[A] State has a compelling interest in not
committing actual Establishment Clause violations.”). If
compliance with the Establishment Clause can rise to a
compelling state interest, surely it is a legitimate educational
interest. Moreover, the guidelines are related to that interest
because, as discussed in the overbreadth and vagueness analysis,
the prohibited conduct would violate the Establishment Clause.
In fact, based on the history and context of Borden’s conduct in
coaching the EBHS football team over the past twenty-three
years, Borden is in violation of the Establishment Clause when
he bows his head and takes a knee while his team prays.17

       17
         The defendants suggest that we do not need to reach the
issue of whether Borden’s requested actions, to bow his head
and take a knee while his team prays, constitute an
Establishment Clause violation. Borden’s complaint did not
make any allegations regarding the Establishment Clause; the
Establishment Clause only surfaced in the cross-motions for
summary judgment to the District Court because the defendants
thought that Borden was asserting a Free Exercise claim, which
he was not. However, in reaching its decision, the District Court
found “that the Plaintiff’s request to bow his head in silence and
take a knee do not violate the Establishment Clause of the
Constitution.” This decision was a declaratory judgment
because it “declare[d] the rights and other legal relations” of the
interested parties. 28 U.S.C. § 2201. The District Court was
within its right to grant a declaratory judgment. See Fed. R. Civ.
P. 57. But we must now review the district court’s decision, see
28 U.S.C. § 2201, and in reviewing a decision to grant a
declaratory judgment, “we will exercise plenary review over the

                                41
       Under the Establishment Clause of the First Amendment,
“Congress shall make no law respecting an establishment of
religion.” U.S. Const. amend. I. This provision applies equally
to the states, including public school systems, through the
Fourteenth Amendment. See Wallace v. Jaffree, 

,
49-50 (1985). The Supreme Court has set forth three tests for
determining whether governmental action violates the
Establishment Clause: the coercion test, the Lemon test, and the
endorsement test. 

. We do not
address whether Borden’s conduct violates the Establishment
Clause under the coercion18 and Lemon19 tests because we find
that Borden’s behavior violates the Establishment Clause under
the endorsement test.



district court’s conclusions of law.” Silverman v. Eastrich
Multiple Investor Fund, L.P., 

, 30 (3d Cir. 1995).
Therefore, we find it necessary to reach the District Court’s
conclusion of law.
       18
        The coercion test looks at whether the government is
“coerc[ing] anyone to support or participate in religion or its
exercise . . . .” Lee v. Weisman, 

, 587 (1992).
       19
         The Lemon test, named after the Supreme Court case of
Lemon v. Kurtzman, 

(1971), established a three-
prong test, holding that conduct violates the Establishment
Clause “if (1) it lacks a secular purpose, (2) its primary effect
either advances or inhibits religion, or (3) it fosters an excessive
entanglement of government with religion.” 

(citing 

).

                                42
        The endorsement test applies “[i]n cases involving state
participation in a religious activity.” See Santa 

. For example, in Santa Fe, the leading case on prayers
before high school football games, the Supreme Court used the
endorsement test in considering whether a school district
violated the Establishment Clause where its policy allowed a
student to deliver a pre-game prayer based on a voting system.

an employee of the School District as both the
head football coach and a tenured teacher, would like to bow his
head and take a knee while students pray. Thus, the
endorsement test is applicable here because these facts involve
a state employee engaging in the religious activity of students in
some fashion.

       The relevant question under the endorsement test is
“whether a reasonable observer familiar with the history and
context of the display would perceive the display as a
government endorsement of religion.” 

; see also Am. Civil Liberties Union Greater Pittsburgh

(adopting the endorsement test). The
test does not focus on the government’s subjective purpose
when behaving in a particular manner, but instead focuses on the
perceptions of the reasonable observer. 

.

       The history and context of Borden’s prayer activities with
the team, if challenged, could have been Establishment Clause
violations. In a case that is similar to the facts of the present
case prior to the School District’s enactment of the policy, the
Court of Appeals for the Fifth Circuit found that a basketball
coach’s involvement in prayer “signal[ed] an unconstitutional

                               43
endorsement of religion.” 

. In
Duncanville, a basketball coach recited the Lord’s Prayer with
his players during practices and after games. 

Parents
of the students challenged this practice, and the district court
granted an injunction which prohibited “[the school district], its
employees and its agents from: leading, encouraging,
promoting, or participating in prayers with or among students
during curricular or extracurricular activities, including before,
during, or after school-related sporting events. . . . Students may
voluntarily pray together, provided such prayer is not done with
school participation or supervision.” 

The school
district challenged the district court’s injunction, arguing that
this prohibition violated its employees’ rights to free exercise of
religion, freedom of association, freedom of speech, and
academic freedom. 

The Fifth Circuit disagreed,
stating that the government’s facilitation of the free exercise of
religion or free expression rights cannot “‘supersede the
fundamental limitations imposed by the Establishment Clause.’”

v. Weisman, 

, 586-87 (1992)). In
addition, the context of the challenged prayer activities, which
occurred during “school-controlled” activities that the team must
attend, demonstrated that the coaches’ “actions [were]
representative of [school district] policies.” 

Fifth
Circuit upheld the District Court’s injunction, finding that the
coaches’ participation was “an unconstitutional endorsement of
religion.” 

past conduct “signals an
unconstitutional endorsement of religion.” 

years, Borden led the team in a pre-game prayer in the locker
room. During that same period of time, Borden orchestrated a

                                44
pre-meal grace for his team. He originally had a chaplain
conduct the pre-meal grace. This practice changed only after
school officials asked him to stop; then he had the chaplain write
the grace and he selected seniors on the team to recite it.
Additionally, during at least three seasons, Borden led the team
in the first prayer of the season. Both of these activities, the
locker room preparations and the pre-game meals, were school-
sponsored events. As in Duncanville, Borden’s involvement in
prayer at these two activities – as a participant, an organizer, and
a leader – would lead a reasonable observer to conclude that he
was endorsing religion.

        In analyzing Borden’s request to engage in silent acts
with his teams, we must consider all of his prior prayer activities
with his team as the Supreme Court did in Santa Fe. For many
years, the Santa Fe Independent School District began each high
school football game with a prayer led by the “Student
Chaplain.” Santa 

, 309. After realizing that
such conduct would violate the Establishment Clause, the school
district developed a two-step student election process, which
allowed students to (1) first decide whether an invocation would
be given at the beginning of a game; and (2) then elect the
speaker to give the invocation. 

The Supreme Court
considered the many years of pre-game prayers at the school,
and the evolution of the policy, including the name “Prayer at
Football Games” and its stated purpose, which is to
“solemniz[e]” the occasion. 

It found that “an
objective Santa Fe High School student will unquestionably
perceive the inevitable pregame prayer as stamped with her
school’s seal of approval.” 

Moreover, it stated that
all of these factors indicated that the purpose of the policy was

                                45
to preserve the popular pre-game prayer, regardless of the
school district’s stated purposes. 

Thus, it found that
the policy failed the endorsement test and violated the
Establishment Clause. 

        Similarly to Santa Fe and as discussed above, the current
controversy is built upon a significant history of pre-game
prayers that involved Borden. Borden organized prayers for the
pre-meal grace at the team dinner; he had a chaplain say a
prayer and then selected seniors to say the prayer. But even
more importantly, Borden led prayers himself – on at least three
occasions for the pre-meal grace, and before each game for
twenty-three years for the locker room prayer. Additionally,
when EBHS officials asked Borden to discontinue this conduct,
he initially resigned from his position as coach of the team
rather than continue as coach without engaging in the prayer
activities. This history of Borden’s prayers with the football
team leads to a reasonable inference that his current requested
conduct is meant “to preserve a popular ‘state-sponsored
religious practice’” of praying with his team prior to games.
Santa 

(citing 

).

      Borden has stated that his intention in taking a knee and
bowing during prayer is to show signs of respect to his team, not
endorse religion.20 Borden attempts to support this argument by

       20
         As an employee of the School District as both a coach
and tenured teacher, Borden’s actions can be imputed to the
School District. For this reason, Borden’s claim that the School
District could remove any Establishment Clause violation by
writing a disclaimer saying that Borden’s speech does not

                               46
pointing to language in Duncanville, which states that “neither
the Establishment Clause nor the district court’s order prevent
[school district] employees from treating students’ religious
beliefs and practices with deference and respect; indeed, the
constitution requires this. Nothing compels [school district]
employees to make their non-participation vehemently obvious
or to leave the room when students pray . . . .” 

n.4.21


represent the ideals of the School District is simply wrong.
Although the Supreme Court has previously suggested
disclaimers as a way to demonstrate that a school district is not
endorsing religion, see Bd. of Educ. v. Mergens, 

,
251 (1990), that was only applicable in the context of permitting
student clubs of a religious nature to meet on school grounds.
The Court reasoned that “there is little if any risk of official state
endorsement or coercion where no formal classroom activities
are involved and no school officials actively participate.” 

are different where, as here, a school official
could reasonably be perceived as engaging in the students’
prayer activities. Therefore, a disclaimer by the School District
would not remove the Establishment Clause violation.
       21
         Borden also invokes the football greats, like Bear
Bryant, to indicate that taking a knee is merely a gesture in the
land of football. However, although taking a knee in a huddle
to discuss strategy is a gesture well known to football gurus as
being part of the game, Borden said a prayer while taking a knee
with his team for over twenty-three years. Based on this
undisputed history, a reasonable EBHS player would conclude
that Borden is endorsing religion if he continues to take a knee

                                 47
        However, we find Borden’s argument to be unavailing.
First, the inquiry is not whether Borden intends to endorse
religion, but whether a reasonable observer, with knowledge of
the history and context of the display, would conclude that he is
endorsing religion. See 

.
Additionally, Borden fails to note that the Fifth Circuit does not
permit any respectful display to pass muster in evaluating the
constitutionality of the display. See 

n.4. Instead, the Fifth Circuit, in the sentence immediately
following the above quote, stated that, “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.” 

reliance on Duncanville is only partially accurate because the
respectful display is permissible only if it does not “cross the
line” and endorse religion.

       We find that, 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. 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, we must consider whether a reasonable
observer would perceive his actions as endorsing religion, not
whether Borden intends to endorse religion. A reasonable
observer would have knowledge of Borden’s extensive
involvement with the team’s prayers over the past twenty-three
years during which he organized, participated in, and led


while his team prays.

                               48
prayer.22 Based on this history, we hold that a reasonable
observer would conclude that Borden is showing not merely
respect when he bows his head and takes a knee with his teams
and is instead endorsing religion.23

       22
          Borden argues that the reasonable observer would also
be familiar with the School District’s previous treatment of
religion. He references Pope v. East Brunswick Board of
Education, 

, 1254 (3d Cir. 1993), a case in which
the School District was admonished for searching the Equal
Access Act for loopholes that would allow it to deny a religious
club access to the school after hours. Borden argues that this
case shows the School District’s disdain for religion, and as a
result, the reasonable observer would not consider his actions to
be religious. However, even if the observer knew of the School
District’s former problems with religious organizations, the
observer would also know that for at least ten years following
the Pope case, Borden, a school official, was involved in prayer
activities at the team dinner, and even more importantly, led a
team prayer before each game. With this knowledge, the
reasonable observer would view Borden’s conduct as endorsing
religion despite any conflicts with religious organizations that
the School District had fifteen years ago.
       23
         As additional evidence of an Establishment Clause
violation, the defendants argue that the pre-game prayers were
not truly student initiated. They suggest that by sending the
email to the team captains asking them to poll the team about the
prayers and then asking for the results, Borden himself initiated
the prayers. The defendants’ argument is supported by the
Supreme Court’s decision in Santa 

, which

                               49
       Without Borden’s twenty-three years of organizing,
participating in, and leading prayer with his team, this
conclusion would not be so clear as it presently is. We agree
with Borden that bowing one’s head and taking a knee can be
signs of respect.24 Thus, if a football coach, who had never
engaged in prayer with his team, were to bow his head and take
a knee while his team engaged in a moment of reflection or
prayer, we would likely reach a different conclusion because the
same history and context of endorsing religion would not be
present.25 However, in Borden’s case, the conclusion we reach


found that a school district violated the Establishment Clause
when it sponsored a student vote on student-led prayer.
However, we need not make this determination because even if
the pre-game prayers were truly student initiated, Borden’s
participation in them by bowing his head and taking a knee
violate the Establishment Clause for the reasons discussed.
       24
          Judge Barry agrees with this statement. See Con. Op.
at 70 (Barry, J., concurring) (labeling Borden’s actions as
“silent, unobtrusive sign[s] of respect”).
       25
         In his concurring opinion, Judge McKee points to a
picture of Borden with his team. See Con. Op. at 55-57
(McKee, J., concurring). In doing so, he suggests that a
reasonable observer could “conclude that the coach is praying
with his team - perhaps even that he is leading the team in
prayer,” 

there was no history of the coach praying
with his team. We cannot agree with this conclusion because
this photograph, standing alone, would be insufficient to satisfy
the “fact-specific, case-by-case” inquiry required. 

                               50
today is clear because he organized, participated in, and led
prayer activities with his team on numerous occasions for
twenty-three years. Thus, a reasonable observer would conclude
that he is continuing to endorse religion when he bows his head
during the pre-meal grace and takes a knee with his team in the
locker room while they pray.

                               IV.

       For all of the above reasons, we conclude that the
guidelines and the Board’s statement were not unconstitutional
on their face, were not unconstitutional as applied to Borden,
and in fact, were necessary for the School District in order to
avoid Establishment Clause violations. Therefore, we will
reverse the District Court’s order.




(quoting 

). For a court to complete
the required analysis, it would need to consider additional facts,
including, for example: (1) Is the team engaging in a moment
of silence, or is someone speaking? (2) If a person is speaking,
is he saying a prayer? (3) If it is a prayer, is it a player or the
coach reciting the prayer? and (4) Who decided to say the
prayer? Only after knowing these facts, as well as the coach’s
history of prayer activities with his team, could any court make
the determination required under the endorsement test.

                                51
McKEE, Circuit Judge, concurring.

        I join Judge Fisher’s lead opinion, but write separately to
clarify a few points, and express a few concerns. At the outset,
I emphasize that we today hold only that (i) the School District’s
policy is not overbroad and vague; (ii) the policy did not violate
Borden’s constitutional rights to free speech, freedom of
association, academic freedom, or due process; and (iii) under
the circumstances here, Borden’s practice of bowing his head
and “taking a knee” as his team prays violates the Establishment
Clause.26

       However, I do not join my colleagues’ suggestion that we
might reach a different result here absent Borden’s 23-year
history of promoting team prayer. That question is not before
us, and I believe that Borden’s “respectful display,” see Con.
Op., infra, at 69 (Barry, J., concurring), might well violate the
Establishment Clause even absent his 23-year history.
Similarly, I can not agree that the football team’s pregame ritual
can accurately be characterized as “student-initiated” prayer.

                                I.

       In reaching our holding, the lead opinion suggests: “[I]f
a football coach, who had never engaged in prayer with his
team, were to bow his head and take a knee while his team
engaged in a moment of reflection or prayer, we would likely

       26
        Both of my colleagues, as well as the district court and
the parties, refer to Borden’s conduct as “taking a knee.”
Accordingly, I will also use that phrase.

                                52
reach a different conclusion . . . .” Supra, at 52; see also Con.
Op., infra, at 71 (Barry, J., concurring). I am not as sure.
Although I agree that would be a more difficult case, it is not
clear to me that our Establishment Clause inquiry would yield
a different result. “[E]very Establishment Clause challenge
requires a fact-specific, case-by-case analysis.” Modrovich v.
Allegheny County, 

, 402 (3d Cir. 2004). As
discussed in the lead opinion, our Establishment Clause inquiry
here turns on whether an objective observer would interpret
Borden’s proposed actions as a state endorsement of religion.
Supra, at 38. I believe such an observer could interpret
Borden’s proposed actions as an endorsement of religion even
absent the coach’s history of promoting team prayer.

          Coach Borden’s suit against the School District did not
seek a declaration “permitting him to pray with his players,”
Borden’s Br. at 9, but rather “a declaration that he be allowed
. . . to continue to demonstrate respect for his players by silently
bowing his head and taking a knee during The Team Prayers.”
Compl. ¶ 18. However, as Judge Fisher’s lead opinion explains,
it is not Coach Borden’s subjective intent that controls whether
his conduct runs afoul of the Establishment Clause. Rather, the
question at the heart of the endorsement test, is whether an
objective observer would perceive that Borden, and by extension
the School District and therefore the state, is advancing or
promoting religious practice. Here, if Coach Borden silently
bows his head and takes a knee as he requests, even without
knowledge of Borden’s 23-year history of involvement with pre-
game prayer, any such observer who peered into East




                                53
Brunswick’s locker room before a game would probably
observe something very much like the following:27




       27
          In fairness, it is important to note that when asked at
oral argument, counsel for Coach Borden was not able to
confirm that this picture, submitted in the School District’s
Reply Brief, accurately depicts the pregame prayers after the
district court’s grant of summary judgment. The photograph
was not entered into evidence in the district court. However, it
is not disputed that the coach in the picture is Coach Borden,
and counsel for Borden did not claim that the picture is
inaccurate. Regardless of when it was taken, it certainly appears
to be what an objective observer would see if he/she were to
observe the coach “silently bowing his head and taking a knee.”
Compl. ¶ 18. In his brief to this court, Borden states that after
the district court invalidated the School District’s policy, he
“silently bowed his head and took a knee with his players while
his players prayed before every game during the 2006 season.”
Borden’s Br. at 3. (This photograph was downloaded from the
Boston Globe web site, and is available at
http://www.boston.com/sports/schools/gallery/
11_07_06_grossfeld_prayer/) (last viewed March 12, 2008).

                               54
        It would be neither surprising nor unreasonable if that
observer were to conclude that the coach is praying with his
team - perhaps even that he is leading the team in prayer. Such
a conclusion would certainly be buttressed by knowledge of
Coach Borden’s history of involvement in team prayer, but the
absence of that history would not necessarily yield a different
result.




                              55
                               II.

        Another troubling consideration (which I amplify below)
is that a non-religious student or one who adheres to a minority
religion might feel subtle (albeit unintentional) coercion to
participate in the ritual despite disagreement or discomfort with
it. That raises a serious Establishment Clause issue under the
Supreme Court’s “coercion” test.28

        The district court accepted the argument that the prayer
that occurred after October 7, 2005, was “student-initiated.” (JA
37). It clearly was not. I have no doubt that Coach Borden is a
sincere and remarkably dedicated individual who cares deeply
for his players. He is also a very successful coach.
Unfortunately, in an apparent desire to do what he thought was

       28
         The Supreme Court has applied the “coercion” test as
well as the “endorsement” test in determining whether state
action violates the Establishment Clause in the public school
context. See Santa Fe Indep. Sch. Dist. v. Doe, 

(2000) (applying endorsement test and coercion test); Lee v.
Weisman, 

, 592 (1992) (observing that “there are
heightened concerns with protecting freedom of conscience
from subtle coercive pressure in the elementary and secondary
public schools” because “prayer exercises in public schools
carry a particular risk of indirect coercion”); Grand Rapids Sch.
Dist. v. Ball, 

, 390 (1985) (“The symbolism of a
union between church and state is most likely to influence
children of tender years, whose experience is limited and whose
beliefs consequently are the function of environment as much as
of free and voluntary choice.”).

                               56
best for his players, he lost sight of his role as a teacher in a
public school.

       After initiating this litigation, and prior to the start of the
2006 season, Coach Borden directed the captains to poll the
football team and ask each player whether or not he wanted to
“follow the same practices as last year” regarding prayer at the
pregame meals and in the locker room before the games. (JA
497). The captains then personally phoned every member of the
football team. Not surprisingly, given the non-anonymous
nature of the poll, no player objected. Given the uproar this
issue visited on the community, the players must have known
how important prayer was to their coach - and no high school
athlete would want to disappoint the coach, or (as I shall
explain) risk incurring the communal wrath that had been visited
on the unfortunate cheerleaders the year before.29

       I am not suggesting that Coach Borden intentionally
pressured his players into voting for pregame prayer ceremonies
or that he wanted to manipulate the outcome. Nevertheless,
these players were put in the untenable position of either
compromising any opposing beliefs they may have had or going

       29
         Moreover, the Supreme Court has held on more than
one occasion that “fundamental rights may not be submitted to
vote; they depend on the outcome of no elections.” West
Virginia Bd. of Ed. v. Barnette, 

, 638 (1943),
quoted in Santa 

. “The whole theory of
viewpoint neutrality is that minority views are treated with the
same respect as are majority views.” Santa 

-
05 (citation omitted).

                                 57
on record (at the very least with their captains) as opposing their
coach and perhaps a majority of their teammates.

       Although the coach thought that the prayers would foster
team unity, and even though the captains reported that all
players wanted to continue the tradition, the record suggests that
the reality was quite different.        In the fall of 2005,
Superintendent Magistro received a phone call from a “crying
and overwrought” woman who identified herself as the mother
of an East Brunswick football player. (JA 153-59, 451). The
mother complained that her son “was extremely upset at Mr.
Borden’s fostering and participating in prayer amongst the
football players.” (Id. at 451). When Magistro asked why her
son participated in the team prayers despite his discomfort, the
mother responded that he “was fearful that if he did not go along
with what was obviously the coach’s desire, he would not get
playing time.” (Id.). The call was one of the factors that led to
the School District policy Borden challenges.

       Unfortunately, the coach appears not to have considered
the possibility that the tradition he wanted to foster could be
troubling for some players and possibly deter others from
playing football at all. The Supreme Court addressed an
analogous situation in Lee. There, the Court held that a public
school could not force nonbelievers to choose between
participating in prayer or missing their graduation ceremony.

       Attendance [at graduation] may not be required
       by official decree, yet it is apparent that a student
       is not free to absent herself from the graduation
       exercise in any real sense of the term “voluntary,”

                                58
       for absence would require forfeiture of those
       intangible benefits which would have motivated
       the student through youth and all her high school
       years.

. Participation in high school athletics is no
less important than attending one’s high school graduation.
Indeed, the ongoing involvement with high school athletics is
undoubtedly far more important to some than a one-time
graduation ceremony. High school sports have long been a
central part of our communities and they shape the character of
many teenagers far more than a single graduation ceremony.

        Regrettably, Coach Borden as a teacher (and therefore as
a state actor for purposes of the First and Fourteenth
Amendments) failed to appreciate that others may not agree with
his beliefs or that the religious beliefs that he held dear might be
in tension with contrary (but equally valid) beliefs of some of
his players. Any player who held opposing beliefs should not
have had to “go along to get along” by silently participating in
religious observances he disagreed with.

       For, “the government may no more use social
       pressure to enforce orthodoxy than it may use
       more direct means.” . . . “[W]hat to most believers
       may seem nothing more than a reasonable request
       that the nonbeliever respect their religious
       practices, in a school context may appear to the
       nonbeliever or dissenter to be an attempt to
       employ the machinery of the State to enforce a
       religious orthodoxy.” . . . The constitutional

                                59
       command will not permit the District “to exact
       religious conformity from a student as the price”
       of joining [his] classmates at a varsity football
       game.

Santa 

(quoting 

, 594).

       Indeed, “it is quite possible that parents of some
[students] chose public education precisely so that their children
would not be compelled to follow the religious beliefs of
others.” ACLU v. Black Horse Pike Regional Bd. of Educ., 

, 1482 (3d Cir. 1996)(en banc). That likelihood is
particularly strong here given the telephone call of at least one
“overwrought” parent that Superintendent Magistro received in
reaction to pregame prayers before the School District enacted
the policy that is challenged here.

       This does not, of course, mean that students have no right
to pray; they clearly do. Whatever else it may be, prayer is a
form of speech and deserves no less protection than secular
speech. Engel v. Vitale, 

, 424-25 (1962).30 The
policy the School District developed in response to the
complaints about pregame prayers was an effort to protect the
First Amendment liberties of everyone in the school community.

                               III.




       30
         Such prayer does not, however, have to occur in the
locker room.

                               60
       The Supreme Court has observed that “[w]e are a
religious people whose institutions presuppose a Supreme
Being.” Zorach v. Clauson, 

, 313 (1952). Yet, the
Court also reminds us that “[i]t is neither sacrilegious nor anti-
religious to say that each separate government in this country
should stay out of the business of [religion] . . . and leave . . .
purely religious function[s] to the people themselves and to
those the people choose to look to for religious guidance.”

.

       Coach Borden’s dedication to instilling in his players
values such as respect and team unity is certainly praiseworthy.
However, as we have explained, the laudable intentions of state
actors do not control an analysis under the First Amendment.
“For just as religion throughout history has provided spiritual
comfort, guidance, and inspiration to many, it can also serve
powerfully to divide societies and to exclude those whose
beliefs are not in accord with particular religions or sects that
have from time to time achieved dominance.” Grand Rapids
Sch. Dist. v. Ball, 

, 382 (1985). This record
contains powerful evidence of such division.

        Superintendent Magistro testified that she received
telephone calls in September 2005 from some parents of
cheerleaders. They complained that their daughters were
“uncomfortable” when Borden initiated a prayer at a pregame
dinner. (JA 153-56). Students apparently learned of these
complaints, and blamed two Jewish cheerleaders. Thereafter,
those cheerleaders were publicly ridiculed by other students at
athletic events, and the cheerleading squad was taunted, bullied,
and booed. (JA 452 at ¶ 5). The cheerleaders were even

                                61
harassed and threatened on a student internet “blog.” In the
days following Coach Borden’s resignation, several internet
posts appeared under the heading, “Jewish Cheerleaders who
suck!!!.” The following are a few examples of the disgusting
comments that were posted:

      •      “First they crucify Jesus, then they got
             Borden fired . . . . Jews gotta learn to stop
             ruining everything cool.” (JA 460)

      •      “The jew is wrong. Borden is right. Let
             us pray.” (JA 467)

      •      “d**n jews . . . then you wonder why
             hitler did what he did back in the day.” (JA
             471)

      •      “MAYBE if [Borden] held a gun to the
             jjjjewwws head and was like b*tch get on
             ur knees and pray to jesus!! then that
             might be breaking the law...ehhh maybe
             not! . . . just suck it up if u don’t fu*king
             like whats going on in america then GO
             THE FU*K BACK TO YOUR
             COUNTRY AND STAY THERE AND
             PRAY . . . .” (JA 487-88)

      •      “Heil Hitla!!! sieg heill.” (JA 490)31

      31
       Borden’s counsel, in his brief and at oral argument,
urged us to disregard evidence of parents’ calls to the

                              62
Superintendent and harassment of the cheerleaders:

      [E]very assertion cited to by [the School District]
      to support every alleged parent or student
      complaint about Borden’s pre-October 7, 2005[,]
      activity is based on hearsay that is derived from
      anonymous sources that the [School] District
      refused to identify.       Defendants have not
      submitted a single sworn, or even unsworn,
      statement from any alleged complaining student
      or parent. Nor has the [School] District disclosed
      the name of any alleged complaining student or
      parent.

Borden’s Br. at 16-17. However, given the nature of these
venomous comments, counsel can not seriously suggest that the
evidence be ignored merely because students and parents who
opposed Coach Borden’s policy were not willing to identify
themselves and offer direct testimony. The situation is neither
new nor unique. In Santa Fe Independent School District v. Doe,
the Court noted that the district court permitted students and
parents to litigate 

. The
opprobrium that can await those who publicly state their
opposition to prayer in school is evident from the Court’s
opinion in Santa Fe:

      About a month after the complaint was filed, the
      District Court entered an order that provided in
      part: “[A]ny further attempt on the part of District
      or school administration, . . . teachers, employees

                              63
       These exchanges illustrate the continuing relevance of
Justice O’Connor’s admonition that “[e]ndorsement sends a
message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying
message to adherents that they are insiders, favored members of
the political community.” Lynch v. Donnelly, 

, 688
(1984) (O’Connor, J., concurring). The School District
attempted to address these concerns by adopting the policy that
the district court struck down in the face of Coach Borden’s
challenge. In reversing the district court, we help to ensure the
continued vitality of the Establishment Clause as well as the
rights of all to worship as they please.




       or servants of the School District, parents,
       students or anyone else, . . . to ferret out the
       identities of the Plaintiffs in this cause, by means
       of bogus petitions, questionnaires, individual
       interrogation, or downright ‘snooping’, will cease
       immediately.

94 n.1 (alteration in original). The district court had to
threaten contempt sanctions and criminal liability to protect
the parents and students who objected to the practice of prayer
at football games. 

Circuit Judge, concurring.

        There was no question, and the parties clearly
understood, that there was one predominant issue before the
District Court: whether the actions in which Borden wished to
engage would violate the Establishment Clause of the First
Amendment, not whether the conduct in which he had engaged
would pass constitutional muster. Put in specific terms, the
parties and the District Court focused their attention on how this
public high school football coach could react, consistent with
the Establishment Clause, when members of his team decide to
initiate voluntary prayers at a pre-game meal attended only by
players, staff, players’ parents, and invited guests, and in the
locker room before a game where only players and coaches are
present.

        Borden, for his part, represented that, whatever had gone
before, he would no longer pray with the team, move his lips,
join his hands with the players, or even close his eyes. Rather,
the two silent actions in which he wished to engage – bowing
his head and taking a knee when the team decides to pray – are
to show his “personal respect” for his players and “respect for
what this game entails and what they do to go out there and play
and give it their all.” The defendants had no problem with that.
As Superintendent Magistro put it, “if the courts determine that
[Borden] taking a knee, bowing his head, is appropriate, that’s
fine. He can do that. I think that’s what this is all about.”
Again, “[i]f the courts come down and say Borden can bow his
head, bend his knee, jump on the table, I am going to allow it.”
The defendants’ briefs before the District Court on the cross-
motions for summary judgment continued that theme. One put

                               65
it this way: “If this Court were to find plaintiff’s actions do not
implicate the Establishment Clause, then regardless of what
Constitutional right plaintiff seeks relief under . . . he would be
entitled to participate in voluntary, non-disruptive student
prayers.”

        Suffice it to say that when they were before the District
Court, the parties were in good faith trying to avoid an
Establishment Clause problem, with defendants explicitly
agreeing to abide by the District Court’s decision. But
defendants did not do so. Rather, now armed with new counsel,
they filed an appeal, creating before us a legal landscape that
bears little or no resemblance to what went on before the District
Court and surely causing the temperature of this litigation to
soar.

       Given my druthers, I would hold defendants to their word
and would not entertain, as my distinguished colleagues have so
generously entertained, the new issues and arguments raised on
this appeal.32 I will not, however, tarry to push the proverbial
waiver rock uphill as to all of those issues and arguments
because I cannot disagree, nor does Judge McKee, with the
bottom-line conclusions of Judge Fisher’s superb lead opinion
that “the guidelines and the Board’s statement were not
unconstitutional on their face, were not unconstitutional as

       32
         I would find, for example, that defendants have waived
the argument that numerous pedagogical reasons justified the
directives and not just fear of litigation and the argument that
Borden has no constitutional rights which would limit
defendants’ exercise of their discretion.

                                66
applied to Borden, and in fact, were necessary for the School
District in order to avoid Establishment Clause violations.”
These conclusions are “threshold question[s] necessary to a
proper analysis of the parties’ [Establishment Clause]
arguments,” before us and so, even if not adequately raised
before the District Court, it is appropriate that we consider them.
See Tenafly Eruv Ass’n Inc. v. Borough of Tenafly, 

, 158 n.15 (3d Cir. 2002).

        I write separately, however, to express my view that
whether or not Borden’s past prayer activities with the team
signaled an unconstitutional endorsement of religion – and I
have little doubt that they did – a reasonable observer would not
conclude that the “respectful display” he proposes would violate
the Establishment Clause. The lead opinion concludes, in its
additional, albeit unnecessary, “hold[ing],” that that display
would “cross the line.” It does so, however, as does Judge
McKee’s concurring opinion, by having the reasonable observer
look only at Borden’s twenty-three years of history with the
team’s prayers and the context of the display he proposes.33 Yet
a reasonable observer would not only have knowledge of that
history, but would know of all that has taken place leading up to

       33
         Judge McKee has included in his concurring opinion a
picture of unknown date that is not in evidence in this case and
thus, in my view, not appropriately considered by us. Having
lost that battle, I agree with Judge Fisher’s assessment of the
picture and what more would be needed before a reasonable
observer could reach the conclusion that Borden was, in fact,
praying, a conclusion reached by Judge McKee based on the
picture alone. See Lead Op. at n.25.

                                67
and during this litigation and know that Borden, under oath, has
represented what he will and will not do and that he merely
wishes to show respect for his players when they pray. A
reasonable observer would have no reason to believe that
Borden was lying.

        Moreover, given the limited number of attendees at the
pre-game meal, it is fair to say that a reasonable observer of a
prayer before that event would be a player, coach, parent, or
invited guest, and a reasonable observer when the team takes a
knee for a pre-game prayer in the locker room would be a player
or a coach, just as in Santa Fe the observer was “an objective
Santa Fe High School student.” Santa Fe Ind. Sch. Dist. v. Doe,

, 308 (2000). Thus, if and when in the future a
player decides to initiate prayer, the reasonable observer would
know, given Borden’s representations, that he did not ask for a
prayer; did not select someone to say a prayer; did not monitor
the content of the prayer; did not provide a means for
broadcasting the prayer; did not join his hands with anyone; and
did not mouth the words of the prayer, or say it aloud, or
otherwise do anything to put the imprint of the state on the
prayer. A reasonable observer would simply see Borden bow
his head or take a knee in a silent, unobtrusive sign of respect
for the private choices made by individual players who are
constitutionally permitted to choose to engage in religious
activities. See, e.g., Zelman v. Simmons-Harris, 

,
649-55 (2002); Bd. of Educ. of Westside Cmty. Sch. v.
Mergens, 

, 251-52 (1990); Child Evangelism
Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 

, 531 (3d Cir. 2004).



                              68
       My colleagues and I do not disagree that bowing one’s
head and taking a knee can be signs of respect; indeed, Judge
Fisher “would likely” find, as would I, no endorsement of
religion were a football coach, who had never engaged in prayer
with his team, to bow his head or take a knee while his team
engaged in a moment of reflection or prayer. Apparently, it is
only Borden, given his prior history, who cannot constitutionally
respond to constitutionally protected student-initiated and
student-composed prayer but, if he can, we are not told what
response might be permissible. Surely he would not be required
to keep his head erect or turn his back or stand and walk away.34
Any such requirement would evidence a hostility to religion that
no one would intend.

       This is a difficult and close case, complicated by the fact
that, unlike the vast majority of Establishment Clause cases
which are brought by plaintiffs complaining of a state’s actions,
this case was brought by an employee of a state complaining
about pre-emptive action taken by the state in its attempt to
avoid an Establishment Clause problem. With this litigation
hopefully nearing its end, one also hopes that those involved


       34
         One wonders how a court can dictate, beyond a certain
point, what response is permissible, much less how a response
would be enforced. Defendants told the District Court that
Borden can bow his head, but he cannot do “a pronounced
bowing of the head.” What is “pronounced,” and who would
decide that question? As defendants also told the District Court,
“The district does not have thought police, and we certainly
don’t have bow police.”

                               69
will move forward as a team for the benefit of the young people
who look to them for guidance and support.




                              70