Appeals court says no to rehearing coach case

EAST BRUNSWICK - A federal appeals court that ruled in favor of the Board of Education's policy prohibiting football coachMarcus Borden fromparticipating in team prayers will not rehear the case.

Borden's attorney, Ronald J. Riccio, requested a rehearing by the fullU.S. 3rd Circuit Court of Appeals earlier this month after a three-judge panel of the court voted unanimously in favor of the school board's appeal. Riccio acknowledged that rehearings are rarely granted but argued that the judges' ruling was contrary to legal precedent, and that their explanations were inconsistent with one another.

On May 15, the appeals court's 12 present judges denied his request.

That leaves the U.S. Supreme Court as the last potential stop in a legal battle that has received national attention since 2005, when Borden announced he would sue the school district for stopping him from participating in student-initiated teamprayer. School officials said their policy was based on federal laws regarding teachers' and coaches' involvement in religious activities, but Borden argued that his constitutional rights permit himto silently take a knee or bow his head as his students pray at team meals or before games.

The U.S. District Court ruled in Borden's favor in July 2006, saying the school district could not prohibit him from such silent gestures while his team prayed. The court said that Borden was not encouraging prayer by bowing his head or taking a knee during team prayer sessions but was respecting the players' wishes and team traditions.

After learning it would be subject to paying the legal costs of Borden's attorney, the Board of Education appealed the district court decision, and was successful in having it reversed last month. The appeals court judges found that Borden's silent participation in the prayers violated federal laws, given his prior history of organizing and at times leading the prayers himself. The judges said an objective observer of Borden's gestures with the teamwould conclude that he was endorsing a religious activity.

Riccio argued that their decision created "two classes of coaches," those like Borden who have a history of prayer with students and are prohibited from taking a knee or bowing one's head, and those who don't. He said the judges' opinions could be interpreted to mean that Borden's assistant coaches can make the gestures, but not the head coach.

Richard Katskee, attorney for Americans United for Separation of Church and State, which represented the Board of Education during the appeal, said last week that he was not surprised with the court's denial of a rehearing. He disagreed with Riccio's argument that the judges' decision was fractured, noting that the panel was unanimous in its ruling that the school board had the right to create and enforce its policy.

"There is no controversy over that in the judges'minds," Katskee said.

Katskee disputed Riccio's point that the decision created two classes of coaches, saying that the ruling was specific to Borden, and that the court had to consider his prior history of leading and engaging in team prayers.

"Courts are not permitted to decide hypothetical cases," Katskee said. "They don't decide questions that are not before it."

Riccio said he will petition the U.S. Supreme Court, likely in August, to hear the case, and he expects to receive support from several groups that have an interest in the case, some that have religious or educational agendas and others. He named theAmerican Football CoachesAssociation as an example.

"I'm confident there will be a fairly broad spectrumof groups that will want the Supreme Court to decide the case for the simple reason that, even the people who like the outcome of the 3rd Circuit Court of Appeals decision feel the issues are important enough, and that there is somuch confusion and conflict from the lower courts, that there is a need to have a standard," Riccio said. "Right now there is no standard. Teachers and coaches don't know what to do if their students engage in prayer."

Katskee said he believes it is unlikely the high court will grant that request, in part because the court receives about 9,000 petitions per year, but takes only 80 to 85 cases. He said he does not think the court will be interested because the recent ruling did not create any new law, but "simply applied well-settled rules."

"He certainly has every right to petition the court, and it will be considered by the court in due course," Katskee said. "But I don't see anything in this case that would be of interest to the Supreme Court."

Riccio acknowledged those statistics, but said the casemeets the criteria that the high court uses in its selections.

"It's an issue of national importance, law in the area is unclear, and there are contradictory decisions in the lower federal courts," he said. "Usually when you have a situation like that, your chances go up dramatically."