Opposition Brief — Borden v. School School District District of the Township of East Brunswick, New Jersey (No. 08-482)

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DEC 29 2008

No. 08-482 SERICE OF THE CLERK

In the Supreme Court of the Gnited States

MARCUS A. BORDEN,

Petitioner,

V.

SCHOOL DISTRICT OF THE TOWNSHIP OF EAST

BRUNSWICK; BOARD OF EDUCATION OF THE TOWNSHIP

OF EAST BRUNSWICK; AND DR. JO ANN MAGISTRO,

SUPERINTENDENT, SCHOOL DISTRICT OF THE

TOWNSHIP OF EAST BRUNSWICK,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

MATTHEW J. GIACOBBE AYESHA N. KHAN

Scarinci & Hollenbeck, RICHARD B. KATSKEE

LLC Counsel of Record

1100 Valley Brook Ave. Americun> United for

P.O. Box 790 Separation of Church

Lyndhurst, NJ 07071 and State

(201) 896-4100 518 C St., NE

Washington, DC 20002

(202) 466-3234

Counsel for Respondents

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

QUESTION PRESENTED

For 23 years, Marcus Borden sponsored and led

official team prayers as head football coach at East

Brunswick High School. In 2005, when parents

complained, the superintendent directed him to stop.

Borden immediately resigned, explaining that he was

unwilling to coach without joining students in team

prayer. Ten days later, he rescinded his resignation;

and five weeks after that, he filed suit. Alleging in his

Complaint that he would no longer lead the team

prayers or say them aloud, he claimed constitutional

rights to continue bowing his head during prayers at

team dinners and ‘taking a knee’ for prayers before

games. He then directed the team to vote on whether

to continue the prayers, letting the students know that

he needed the results for his lawsuit.

The Third Circuit unanimously held that Borden

lacks any right to disobey the School District's

directive, and accordingly, he has no valid claim,

irrespective of wheter his desired conduct would

violate the Establishment Clause. The panel members

divided over the hypothetical question whether the

Establishment Clause would bar a coach with no

history of involvement in student prayers from bowing

and taking a knee during voluntary, student-initiated

prayers. Taking no issue with the Third Circuit’s

unanimous holding that he lacks any right to disobey

the School District’s directive, Borden presents only

the non-dispositive, hypothetical question that divided

the panel.

(1)

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................... I

GRE SAJEUREGIVESD 5 5 ccc isceccseseeestewn u

Tae OF AUTHORITIES ....... ccc ccccecs lil

gb o's as od DR ee 1

REASONS FOR DENYING THE PETITION .... 15

I. The Question Presented In The Petition

Can Have No Effect On The Outcome Of This

ES as sh ede oo a eee 16

II. The Decision Below Creates No Circuit Split

And Engenders No Doctrinal Confusion ..... 17

A. There is no conflict over whether context

matters in Establishment Clause cases ... 17

B. There is no split of authority over whether

nonparticipation in prayer constitutes

en NNN Sis, vw v5 so whee ee 21

C. There is no doctrinal confusion about how

the endorsement test applies to this case . 22

III. The Decision Below Is Plainly Correct And

Does Not Warrant Further Review ......... 24

A. The Third Circuit correctly held that

Borden has no right to disobey the

ee ee ere rr 24

B. The Third Circuit correctly determined

that Borden’s conduct violates’. the

Establishment Clause ................. 26

I 5 en as ad eso 2 Ay AS Oe 27

lil

TABLE OF AUTHORITIES

Page(s)

Cases:

ACLU of N.J. v. Schundler,

IGS F.30a OS Gd Cir. TOGO) .. ww ccc cscs 20

Ams. United for Separation of Church &

State v. City of Grand Rapids,

960 F.2d 1636 (6th Cir. 1902) ........2..5.-. 23

Bd. of Dirs. of Rotary Int'l v. Rotary Club,

Pe ee og os ec eyes eke wasleee 24

Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) ..... 18

Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) .... 21

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ... 24

Chandler v. James, 180 F.3d 1254

(11th Cir. 1999), vacated and remanded,

530 U.S. 1256, reinstated, 230 F.3d 1313

CEEie Ge, SU i oes es ee ee heh in 21, 22

Connick v. Myers, 461 U.S. 188 (1988) .......... 16

Doe v. Duncanville Indep. Sch. Dist.,

70 F.3d 402 (5th Cir. 1995) ........... &, 21, 22

Doe v. Small, 964 F.2d 611 (7th Cir. 1992) ...... 23

Edwards v. Cal. Univ. of Pa.,

156 F.3d 488 (3d Cir. 1998) ............. 16, 24

Freedom from Religion Found., Inc. v. City of

Marshfield, 203 F.3d 487 (7th Cir. 2000) ..... 23

Givhan v. W. Line Consol. Sch. Dist.,

AOS UD. SID CGT) ng oe i ce eee eweses 16

1V

TABLE OF AUTHORITIES — Continued

Page(s)

Good News Club v. Milford Cent. Sch.., ;

ee Rt OPED ko cc heb ewe eee ene e seve 23

Granzetier v. Middleton, 173 F.3d 568

ee I oe ee ew oe eh wee 20

Griswold v. Connecticut, 381 U.S. 479 (1965) .... 25

Grossman v. S. Shore Pub. Sch. Dist.,

507 F.3d 1097 (7th Cir. 2007) ........... Z1, 25

Holloman v. Harland, 370 F.3d 1252

ee ED ov ns oe pa ea eee 21, 22

Ingebretsen v. Jackson Pub. Sch. Dist.,

66 F.3a 274 (6th Cir. 1906) ... 0 we ee eee 21, 22

Kong v. City & County of S.F.,

No. 00-15261, 2001 WL 1020102

co gk ee |S ee 23

Lawrence v. Texas, 539 U.S. 558 (2003) ......... 25

Lee v. Weisman, 505 U.S. 577 (1992) ..... 19, 22, 27

Lemon v. Kurtzman, 403 U.S. 602 (1971) .... 13, 18

Marchi v. Bd. of Coop. Educ. Seruvs.,

173 F.3d 469 (2d Cir. 1999) ............. 25, 26

McCreary County v. ACLU of Ky.,

BORG, i8, 22, 23

McGowan v. Maryland, 366 U.S. 420 (1961) ..... 18

Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995) ... 20

Vv

TABLE OF AUTHORITIES — Continued

Page(s)

Pickering v. Bd. of Educ.,

Gen wo. GeotigGe) ............. 10, 11, 16, 26

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ..... 24

Rusk v. Crestview Local Sch. Dist.,

379 F.3d 418 (6th Cir. 2004) ............... 28

Santa Fe Indep. Sch. Dist. v. Doe,

Goo Uo. 290 (2000) .................. passim

Selman v. Cobb County Sch. Dist.,

449 F.3d 1320, 13823 (11th Cir. 2006) ........ 22

Tenn. Secondary Sch. Athletic Ass’n v.

Brentwood Academy, 127 S. Ct. 2489 (2007) .. 25

Constitutional Provisions:

ES SS SS passim

Statutes:

Equal Access Act, 20 U.S.C. §§ 4071-4074 ... 21, 22

BRIEF FOR THE RESPONDENTS IN OPPOSITION

This case invoives a public-high-school football

coach’s extravagant claim of a constitutional right to

violate a school policy designed to avoid faculty

entanglement in student prayer. The School District

specified how its faculty should interact with students

in class and at school activities. Borden disagreed. But

he does not challenge the Third Circuit’s unanimous —

and case-dispositive — ruling that he lacks any right

to disobey. Rather, he asks this Court to review the

question whether the School District would have had

an Establishment Clause justification to override that

right if it had actually existed — a determination that

the court below expressly recognized to be unnecessary

to deciding the case.

The question that the petition purportedly presents

is irrelevant to the disposition of this case for another

reason, as well. Borden asks this Court to ignore the

history and context of his actions, and to decide, in a

vacuum, whether a teacher or coach with no previous

involvement in student prayer may make “secular

gestures of silent respect in response to * * * student-

initiated religious acts.” Pet. i. That question bears no

relation to the facts of this case.

STATEMENT

For 23 years, Borden “orchestrated” and “led”

official team prayers. Pet. App. 48a. When parents

complained, the School District directed him to stop.

This action is his challenge to the District’s authority

to issue that directive.

2

1. The East Brunswick High School holds team

meals in the cafeteria after school on game days.

Attendance is mandatory for the players. Cheerleaders,

other students, and parents also attend.

At every pregame meal since becoming coach in

1983, Borden has directed the players and other

attendees to stand for formal team prayers. For many

years, he invited the local Presbyterian minister (or

occasionally, early on, a rabbi), to deliver those

prayers. In approximately 1997, however, the high-

school athletic director told him that doing so was

impermissible. So Borden had the minister write an

official team prayer, which Borden “selected seniors on

the team to recite.” Pet. App. 49a. Starting in 2003,

Borden took it upon himself personally to lead the

prayer at the first pregame meal each fall, while

continuing to appoint seniors to do so for the other

games.

Borden also led a separate prayer ir the locker

room before every game during his entire tenure as

coach. After the players suited up, he directed them to

‘take a knee’ and gather around the blackboard to

review strategy. Then, just before the players took the

field, he got down on his knee with the team, and

personally led the team in prayer.

2. JoAnn Magistro, the superintendent of schools,

first learned about the prayers a few weeks into the

2005 football season, when two cheerleaders’ parents

called, complaining that their daughters became

uncomfortable at a pregame dinner when Borden told

everyone to stand, bowed his head, and had a student

lead a prayer invoking Jesus. Magistro then learned

3

that other students and parents had complained the

previous year, and that Borden had been told to cease

his mealtime-prayer practice but had not done so.

A few days later, a “crying and overwrought”

mother ofa football player complained to Magistro that

her son was both upset by the prayers and afraid that

Borden would appoint him to lead one. Pet. App. 63a

(McKee, J., concurring) (quoting C.A. App. 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.” [bid.

Magistro had the athletic director tell Borden to

stop leading mealtime prayers. (She did not yet know’

about the locker-room prayers.) But Borden continued

them anyway, and, according to a parent, “told the

students that if they felt uncomfortable during the

prayer. they could wait in the restroom until it was

over.” Pet. App. 8a. Yet more parents complained,

including one who had consulted a lawyer and was

threatening litigation.

3. Magistro met with Borden, told him of the

parents’ complaints, and asked him to describe the

mealtime prayers. Borden explained that, when the

food was ready, he would ask everyone to stand, and

would then select a student to deliver a prayer. He

went on to tell Magistro that he also led prayers in the

locker room.

Magistro included the School District’s attorney in

the meeting by teleconference, so that he could clarify

4

the rules regarding prayer in school; and together they

instructed Borden to stop conducting team prayers. At

the end of the meeting, Borden said that he did not

know how he was going to respond to that directive

because obeying would mean that “the parents win.”

C.A. App. 160.

That same day, the attorney prepared written

guidelines on school prayer:

1. Students have aconstitutional right to

engage in prayer on school property, at

school events, and even during the course

of the school day, provided that:

A. The activity is truly student

initiated; and

B. The prayer activity does not

interfere with the normal operations

of the school district.

This would mean that * * * 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

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.

C.A. App. 220-21 (quoting Doe v. Duncanville Indep.

Sch. Dist., 70 F.3d 402, 406 n.4 (5th Cir. 1995)).

That afternoon, Magistro sent Borden the guide-

lines, acknowledging Borden’s disagreement but

instructing him to comply. She invited him to contact

her with questions, but he never did.

4. Borden did not show up for the football game

that evening. Nor did he return Magistro’s or the

athletic director’s telephone calls asking where he was.

Later that night, he sent the athletic director an e-mail

announcing that he was resigning as coach, “effective

immediately.” C.A. App. 224.

6

Ten days after resigning, Borden, through his

attorney, rescinded his resignation. He explained that

he had quit because he was unwilling to coach if he

could no longer pray with students before games, but

that he was now prepared to resume his coaching

duties, and to “adhere to the District’s directive to

him,” while preparing to sue. C.A. App. 228-229. At a

school-board meeting a few days later, the board

president formally recognized Borden’s right to

disagree with the school-prayer policy, but not to

disobey it.

Meanwhile, word got out that some cheerleaders

had complained about Borden’s prayers. The cheer-

leading squad immediately became the object of

harassment and ridicule at athletic events. And the

District’s “student internet message boards were

bombarded with posts” (Pet. App. 13a n.3) attacking

“Jewish Cheerleaders who suck,” on the apparent

assumption that the two Jewish members of the squad

had been the ones to complain. These are some of the

posts:

® “Madeline Witchell and Debbie Elson...you guys

thought u dint have friends to begin with...now

ur really f**ked...I1 will make sure that I make

the rest of the year a living hell for both of u”

e “First they crucify Jesus, then they get Borden

fired...what the hell. Jews gotta learn to stop

ruining everything cool.”

@ “The jew is wrong. Borden is right. Let us pray.”

@ “lets have a rumble...jews vs. christians....... F

7

e “F**K THE JEWS”

e@ “d**n jews..then you wonder why hitler did

what he did back in the day”

e “MAYBE if [Borden] held a gun to the jjjjiewwws

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 ifu

don’t fu*king like whats going on in america

then GO THE FU*K BACK TO YOUR

COUNTRY AND STAY THERE AND PRAY

AND EAT ME ook?”

@ “Heil Hitla!!! seig heilll.”

C.A. App. 457-495; Pet. App. 67a-68a. Students who

defended the cheerleaders or suggested that Borden’s

actions might be inappropriate became victims of

equally ugly racist, sexist, and homophobic slurs and

threats. As a result, the superintendent received yet

more complaints — including one from a local rabbi,

who had also lodged a complaint with the county

prosecutor.

5. Five weeks after rescinding his resignation,

Borden filed suit, challenging the District's school-

prayer policy as violating various state constitutional

provisions and depriving him of federal due-process

rights. Although contending that he has the right to

continue leading team prayers, Borden nonetheless

alleged that he would stop saying the prayers aloud.

He expected that the players would continue the

prayers regardless, because, he explained, they were

longstanding school traditions; and he sought a

8

declaratory judgment that he has the right to continue

bowing and ‘taking a knee’ for them.

That spring, while preparing for trial, Borden

ordered the team’s student captains to ask each of the

other players whether to continue the prayers, and to

report their responses to him:

Please consult with the players and let

me know whether the players wish to

follow the same practices as last year

regarding the player initiated and

composed grace before pre-game meals

and the pre-game taking of a knee in the

locker room. Whatever the players decide

to do is fine with me.

Be sure to email me their response

and let me know that you spoke with all

the players on the roster.

C.A. App. 497. A couple of days later, Borden sent a

follow-up directive:

My lawyer keeps asking me for the

results of your contact with the other

players. He is trying to set up a trial date

and he needs this information right

away. You guys have to touch base with

everyone by Monday so that I can fax him

your email.

Id. at 498.

9

One of the student captains quickly responded:

Coach Borden,

We talked to all of the players you

asked about, and everybody agreed that

we would like to continue our pregame

prayer ritual. Hope this helps you out and

sorry it took so long.

C.A. App. 498.

6. The School District sought summary judgment,

arguing principally that its school-prayer policy does

not violate Borden’s free-exercise rights and is required

by the Establishment Clause. Borden responded by

denying that he was making any free-exercise claim.

He argued that bowing and taking a knee for team

prayer are not religious acts, but instead are secular

coaching techniques essential for fostering team unity.

Describing a football team as a “family unit,” he

contended that he, the coach, could not be a part of

that family without bowing and taking a knee with the

players for prayers. C.A. App. 72, 441-442.

Borden also cross-moved for summary judgment,

contending that the District’s policy violates his federal

and state free-speech and academic-freedom “right and

ability to be a coach, to do what coaches do,” as well as

his federal privacy, autonomy, and associational rights

to interact with students; and that it constitutes “an

‘old fashioned’ liberty violation, reminiscent of the

Middle Ages, by which [his] bodily movements have

been restrained by government as if he is chained and

shackled.” C.A. App. 25; Borden’s Summ. J. Opp’n 35.

He also argued that the policy is vague and overbroad.

10

The Dis*rict responded principally by arguing that

Borden’s conduct violates the Establishment Clause,

and that his rights are outweighed by its interests

under the Pickering balancing test. See Pickering v.

Bd. of Educ., 391 U.S. 563, 568 (1968).

7. In an unpublished, oral ruling from the bench,

the district court granted summary judgment to

Borden on virtually all his claims. Although

acknowledging that “an Establishment Clause

violation would occur if the coach initiated and led the

|prayers],” the court found that (a) silently bowing and

taking a knee for the prayers are not violations; (b) the

District’s policy is vague and overbroad; and (c) the

policy violates Borden’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.” Pet.

App. 86a. The court did not rule on Borden’s privacy or

autonomy claims.

The court rejected the School District’s argument

that Borden’s conduct must be judged in light of his

23-year history of initiating and leading team prayers.

C.A. App. 9-10. The court also refused to consider the

constitutional implications of the team vote, excusing

it as a litigation strategy. Jd. at 8-9. And because

‘taking a knee’ in football “does not have the [religious]

significance typically associated” with kneeling for

prayer, the court held that Borden’s taking a knee for

prayer is simply “a sign of respect for his players’

actions and traditions.” Pet. App. 84a, 86a. Thus, the

discrict court “[took] the Plaintiff at his word as to

what he wants to do,” and treated his promise about

11

his future conduct as the only fact on which the case

turns. C.A. App. 9.

8. Thecourt of appeals (per Judge Fisher) reversed,

unanimously holding that the school-prayer policy is

not unconstitutional, either on its face or as applied.

Pet. App. 21a-43a; 1d. at 72a (Barry, J., concurring).

The court held that because the policy has

numerous valid applications, it is not overbroad. Pet.

App. 22a-24a. Because it clearly describes the pro-

hibited conduct, it is not unconstitutionally vague. Id.

at 25a-26a.

The court then rejected Borden’s free-speech claim,,

explaining that Borden’s “silent acts of bowing his head

and taking a knee are not [speech] on matters of public

concern” under Pickering. Pet. App. 37a. And because

Borden conceded that bowing his head and taking a

knee are pedagogical methods that he employs

“pursuant to his official duties as a coach,” his conduct

is not protected by academic freedom. Id. at 36a n.13,

38a-39a. The School District had the lawful authority

to “choose both how its students are taught and what

its students are taught”; and Borden, while free to

“voice his disagreement,” has no right to disobey. Jd. at

39a.

Next, the court held that public-school football

teams are not constitutionally protected private,

expressive associations; and “the relationship [between

coaches and players] is typically not so close as to” give

rise to rights of intimate association. Pet. App. 40a-

4la. The panel also concluded that Borden suffered no

12

deprivation of due process because no fundamental

rights were at issue. Jd. at 42a-43a.

Finally, after unanimously and fully disposing of all

Borden's claims to have constitutionally cognizable

interests in disobeying the District’s school-prayer

policy, the court went on to consider whether the

District would have had an Establishment Clause

justification for overriding those interests if they had

existed. Pet. App. 43a-56a. The court began by noting

that its analysis was irrelevant to the outcome of the

case: “[B]Jecause Borden has no First Amendment right

to his silent acts, we do not need to analyze the policy”

to determine whether the District had adequate

justification for it. Id. at 44a. “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.” Ibid.

The majority proceeded to conclude that, on the

facts of this case, Borden’s desired conduct would

violate the Establishment Clause; and hence, the

School District had no choice but to prohibit it. The

court pointed to Borden’s “significant history of pre-

game prayers,” including the facts that he personally

organized and led those prayers for 23 years and that,

“when [school] officials asked [him] 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.” Pet. App. 50a. The

court thus held that “[t]his history * * * leads to a

reasonable inference that [Borden’s] current requested

conduct is meant to preserve a popular state-sponsored

religious practice of praying with his team prior to

13

games.” /bid. (internal quotation marks and citations

omitted).

The court rejected the claim that Borden’s conduct

must be viewed as wholly secular, explaining that,

“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’s practice is instead to take a

knee for prayer. Pet. App. 52a n.21. Thus, “[ajlthough

Borden believes that he must continue to fbow and

take a knee] to demonstrate solidarity with his

team, * * * [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 prayer,”

and “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.”

Id. at 53a-54a.

Having held that Borden’s actions unconsti-

tutionally endorse prayer, the court chose not to decide

whether they also fail the coercion or Lemon tests. Pet.

App. 46a. Nor did the court decide whether the team

vote was unconstitutional — although it noted that the

“argument is supported by the Supreme Court’s

decision in Santa Fe.” Id. at 54a n.23.

9. Judge Fisher, writing for himself alone, went on

to comment that, while “the conclusion we reach today

is clear” because of Borden's history, it “would not be so

clear’ without that history. Pet. App. 54a-56a.

Suggesting that “we would likely reach a different

conclusion” for a coach “who had never engaged in

prayer with his team,” Judge Fisher listed a number of

14

factual considerations that would affect tha:

determination on a case-by-case basis. Jd. at 55a &

n.25 (emphasis added).

Judge McKee wrote separately, disagreeing with

Judge Fisher about the likely outcome for a coach why

had no history of involvement in team prayer. Give,

the relationship between coach and players, Judgs

McKee explained, “a non-religious student * * * migh;

feel subtle (albeit unintentional) coercion to participats

in the ritual despite disagreement or discomfort wit)

it.” Pet. App. 60a. Judge McKee also opined that, oy

the facts of this case, “the players must have know,

how important prayer was to their coach — and n)

high school athlete would want to disappoint the coach,

or * * * risk incurring the communal wrath that haj

been visited on the unfortunate cheerleaders.” Id. 4

62a. While “[a]ny player who held opposing belief

should not have had to ‘go along to get along’ by,

silently participating in religious observances hy:

disagreed with,” “these players were put in th

untenable position of either compromising ary

opposing [religious] beliefs they may have had or goiny

on record * * * as opposing their coach and perhaps ,

majority of their team.” Jd. at 62a-64a. Judge McKe

thus concluded that the School District had adopted 4

policy “to protect the First Amendment liberties ¢

everyone in the school community.” Jd. at 65a-6G

(emphasis in original).

Judge Barry, too, wrote separately. She agreed wit;

the case-dispositive holding that Borden’s claims fa]

because he has no affirmative rights against tle

District. Pet. App. 72a. But in ight of Borden’s promis

15

that he would no longer lead the team prayers, she

opined that his desired conduct would not violate the

Establishment Clause, despite the history underlying

it. Id. at 73a.

REASONS FOR DENYING THE PETITION

Borden seeks review on whether public-school

coaches “violate the Establishment Clause if they make

secular gestures of silent respect in response to

constitutionally protected student-initiated religious

acts.” Pet i. But because he does not seek review of the

Third Circuit’s unanimous holding that he lacks any

affirmative rights to engage in that behavior, his

claims necessarily fail — regardless of whether his

conduct would violate the Establishment Clause if the

‘School District chose to allow it. The question on which

he seeks review can thus have no bearing on the

outcome of this case.

In. addition, the court’s fact-bound alternative

holding that Borden’s conduct violates the

Establishment Clause is correct and does not conflict

with any decision of this Court or another court of

appeals. As for how the Establishment Clause might

apply to a coach with no history of involvement in

student prayers, which is the only question on which

Borden seeks review, the panel members’ disagreement

pertained to the possible resolution of hypothetical

cases with different facts — and even then, only with

respect to the court’s alternative holding.

16

I. The Question Presented In The Petition Can

Have No Effect On The Outcome Of This Case.

This case is not a typical Establishment Clause

action in a public-school setting: No parent has sued to

curtail the imposition of religious practices on a child.

Rather, the School District enacted a policy governing

staff conduct, which one staff member dislikes and

wishes to disobey. The Establishment Clause came up

solely as a justification for the policy.

That justification would be pertinent here only if

school employees had some legally cognizable interest

in disobeying the challenged policy. In the absence of

such interests, the District has the right to make and

enforce decisions specifying how its employees perform

the functions it assigns to them. Connick v. Myers, 461

U.S. 138, 146 (1983) (under Pickering, “ordinary

dismissals from government service which violate no

fixed tenure or applicable statute or regulation are not

subject to judicial review even if the reasons for the

dismissal are alleged to be mistaken or unreasonable”);

Givhan v. W. Line Consol. Sch. Dist., 489 U.S. 410,

414-415 & nn.3-4 (1979); see, e.g., Edwards v. Cal.

Univ. of Pa., 156 F.3d 488, 491 (3d Cir. 1998) (Alito, J.)

(rejecting challenge to jury instruction on balancing

professor's rights against university's asserted

interests “because, as a threshold matter, we conclude

that a public university professor does not have a First

Amendment right to decide what will be taught in the

classroom”).

Because Borden does not challenge the Third

Circuit's unanimous holding that he has no legally

cognizable interest in disobeying the school-prayer

17

policy, the question whether his desired conduct would

be constitutional if the School District permitted it is

purely academic: No interpretation or application of

the Establishment Clause could change the outcome

for Borden.

II. The Decision Below Creates No Circuit Split

And Engenders No Doctrinal Confusion.

Even if the Establishment Clause issues raised by

Borden's petition were squarely presented in this case,

they would not warrant review.

Borden claims that, in applying the endorsement

test, the court below erred by considering the history

behind his actions. He asserts that history matters

under the Establishment Clause for determining the

purpose underlying a governmental action, but not for

ascertaining the action’s effect. But both this Court and

the lower courts routinely consider history and context

as an essential feature of any Establishment Clause

inquiry; the purported circuit split does not exist.

When that argument for certiorari fails, so, too, do

all Borden’s others. Only by first cutting history and

context out of the equation can Borden claim that

bowing and kneeling simply show respect for student-

initiated religious observances. And in all events, there

is no doctrinal confusion that warrants clarification by

this Court.

A. There is no conflict over whether context

matters in Establishment Clause cases.

According to Borden, this Court has allowed

consideration of history solely to determine un-

18

constitutional purpose under the Lemon test. Pet. 16-

19. He is incorrect.

In fact, this Court has consistently refused to turn

a blind eye to a challenged act’s historical context in

any Establishment Clause inquiry — whether relating

to religious purpose, religious effect, religious

endorsement, religious preference, or excessive

entanglement. Thus, this Court considered the history

surrounding the legislative creation of a school district

in determining that the resulting statute afforded an

unconstitutional religious preference. Bd. of Educ. v.

Grumet, 512 U.S. 687, 703 (1994). It looked to the

general “history of government grants” in determining

that a particular grant would inevitably come with

intrusive oversight, entangling government with

religion. Lemon v. Kurtzman, 403 U.S. 602, 621 (1971).

It looked to the past iterations of a governmental

display in determining that a new display was erected

with a religious purpose. McCreary County v. ACLU of

Ky., 545 U.S. 844, 866, 869-872 (2005). And it

considered history in concluding that a Sunday-closing

law had undergone sufficient changes since enactment

to shed its religious character. McGowan v. Maryland,

366 U.S. 420, 432-434 (1961).

Most notably, this Court looked to history in Santa

Fe Independent School District v. Doe, 530 U.S. 290

(2000), to ascertain both the purpose for, and the effect

of, a public school’s football-prayer practice. It thus

held that a reasonable student observer in the listening

audience would consider the evolution of the prayer

practice in evaluating the practice’s current iteration,

and would “unquestionably perceive the inevitable

19

pregame prayer as stamped with [the] school’s seal of

approval.” Jd. at 308-309.

The Third Circuit conducted the same inquiry here;

and, on the specific facts of this case, reached the same

conclusion. Explicitly declining to perform a purpose

analysis, the court nonetheless determined that it

“must consider all of [Borden’s] prior prayer activities

with his team, as the Supreme Court did in Santa Fe,”

not because past Establishment Clause violators are

forever tarred with their violations, but because,

“(b]ased on th{e] undisputed history,” a reasonable

observer would evaluate Borden’s evolving practices in

light of his “significant history of pre-game prayers,”

including his “initially resign[{ing] * * * rather than

continu[ing] as coach without engaging in the prayer

activities.” Pet. App. 49a-50a, 52a n.21. In concluding

that the “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,” what the court was actually deciding

is that students would view Borden’s prospective

actions within the frame set by his past and current

conduct; and in so doing, they would see the prayers as

stamped with Borden’s seal of approval, whether he

intended them to be or not. Jd. at 50a (quoting Santa

Fe, 530 U.S. at 309 (quoting Lee v. Weisman, 505 U.S.

577, 596 (1992))) (internal quotation marks omitted).

The three court-of-appeals cases that Borden cites

for the proposition that history is out of bounds all

predate Santa Fe. If they conflicted with it, they would

no longer be good law. But far from forbidding

20

consideration of history, all expressly looked to that

factor. The courts simply concluded, on the facts before

them, that the practices being challenged were not

tainted by past violations. Granzeier v. Middleton, 173

F.3d 568 (6th Cir. 1999), rejected the claim that an

“errant” county employee’s one-time posting of

religious signs relating to a holiday closing could

forever after taint the county’s pre-existing holiday-

closing policy. It did so because a reasonable observer

would weigh the county’s venerable tradition and its

secular purpose against the employee’s recent misstep,

and would infer a governmental endorsement of

religion only for the year that the signs were displayed.

Id. at 573-576. Metzl v. Leininger, 57 F.3d 618 (7th Cir.

1995), invalidated a state law requiring school closures

on Good Friday, but suggested that a revised statute

might withstand constitutional scrutiny if — but only

if — the state could provide sufficient evidence that

either the new statute or Good Friday itself had

become sufficiently secularized. And ACLU of New

Jersey v. Schundler, 168 F.3d 92 (3d Cir. 1999),

rejected the argument that an earlier, unconstitutional

holiday display necessarily tainted a later one because,

given the “fine line-drawing” that holiday-display cases

require, “the mere fact that city officials miscalculate

and approve a display that is found * * * to cross over

the line is hardly proof of the officials’ bad faith.” Id. at

105. In other words, the court refused to assume a

continuing unconstitutional purpose where one likely

never existed in the first place; and it declined to find

a continuing religious endorsement based on a single

impropriety that the government quickly and fully

corrected.

21

B. There is no split of authority over whether

nonparticipation in prayer constitutes

religious animus.

Borden claims that the decision below mandates

hostility toward religion, thus conflicting with

decisions requiring neutrality. But public officials’

nonparticipation in private religious exercises need not

be hostile: Merely sitting on the sidelines does not

show disdain for those in the huddle. No court has ever

held to the contrary.

Neither this Court nor the lower courts have

treated public officials’ bare nonpart’cipation — failing

to bow and kneel for prayer, and the like — as

prohibited religious animus. Quite the contrary. They

have uniformly recognized it as constitutionally

permitted — if not affirmatively required.’

The petition incorrectly claims that other courts

have barred only “active participation” while the

decision here forbids mere passivity. Both Congress

and the courts of appeals have routinely spoken only in

' See, e.g., Bd. of Educ. v. Mergens, 496 U.S. 226, 251 (1990)

(because the Equal Access Act, 20 U.S.C. §§ 4071-4074, “expressly

limits participation by school officials at meetings of student

religious groups,” it avoids “any risk of official state endorsement

or coercion”); Grossman v. S. Shore Pub. Sch. Dist., 507 F.3d 1097,

1099 (7th Cir. 2007) (Posner, J.); Holloman v. Harland, 370 F.3d

1252, 1287 (11th Cir. 2004); Chandler v. James, 180 F.3d 1254,

1264 (11th Cir. 1999), vacated and remanded, 530 U.S. 1256,

reinstated, 230 F.3d 1313 (11th Cir. 2000); Ingebretsen v. Jackson

Pub. Sch. Dist., 88 F.3d 274, 279 (5th Cir. 1996); Duncanville, 70

F 3d at 406 & n.4.

22

terms of “participation,” without the modifier.” In any

event, Borden is anything but passive: He bows his

head and takes a knee expressly, and only, for prayer.

See C.A. App. 108-109, 441; cf. Lee, 505 U.S. at 593

(even “the act of standing or remaining silent [is] an

expression of participation in * * * prayer” sufficient to

give rise to Establishment Clause concerns).

C. There is no doctrinal confusion about how

the endorsement test applies to this case.

Borden invites this Court to use this case as an

opportunity to refine or jettison the endorsement test.

There is no occasion here for doing either.

Although the members of the panel below parted

company over how the endorsement test might apply to

a new coach with no history of involvement in student

prayers, that hypothetical case bears no relation to the

facts here. Accordingly, this case would be an

exceedingly poor vehicle for resolving’ the

disagreement.°

* See Equal Access Act, 20 U.S.C. §§ 4071-4072; Holloman, 370

F.3d at 1287; Chandler, 180 F.3d at 1264-1265; Ingebretsen, 88

F.3d at 279; Duncanville, 70 F.3d at 405-406.

> As Judge Fisher recognized, a number of “additional facts”

would have to be considered “[flor a court to complete the required

analysis.” Pet. 55a-56a n.25; cf. McCreary, 545 U.S. at 867 (“under

the Establishment Clause detail is key”); Selman v. Cobb County

Sch. Dist., 449 F.3d 1320, 1323 (11th Cir. 2006) (In Establishment

Clause cases, “the devil is in the details. Facts and context are

crucial and they, of course, must be determined from the

evidence * * *.”).

23

Borden also asserts that the lower courts have

settled on different vantage points for the reasonable

observer. Pet. 28-29. But all the cases to which he

points, save one, concern religious displays.* The lone

public-school case is Rusk v. Crestview Local School

District, 379 F.3d 418 (6th Cir. 2004), which involved

the distribution of religious fliers to parents via their

children’s school mailboxes. Not only does that

situation bear no relation to this one, but this Court

has since specified the reasonable observer’s vantage

point for that type of case. See Good News Club v.

Milford Cent. Sch., 533 U.S. 98, 117-19 (2001).® This

Court has similarly specified the reasonable observer

for situations like the one at hand, stating

unequivocally that football-prayer practices are to be

evaluated from the standpoint of a student in the

listening audience. Sania Fe, 530 U.S. at 308. Borden

does not deny that his practices should be evaluated

through that lens. Thus, there is no circuit split or

doctrinal confusion for this Court to resolve.

* See Kong v. City & County of S.F., No. 00-15261, 2001 WL

1020102 (9th Cir. Sept. 5, 2001) (unpublished); Freedom from

Religion Found., Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir.

2000); Ams. United for Separation of Church & State v. City of

Grand Rapids, 980 F.2d 1538 (6th Cir. 1992); Doe v. Small, 964

F.2d 611 (7th Cir. 1992).

* This Court has also recently clarified the reasonable observer's

vantage point in religious-display cases. See McCreary, 545 U.S.

at 866.

24

Ill. The Decision Below Is Plainly Correct And

Does Not Warrant Further Review.

The decision below is a straightforward and

manifestly correct application of settled law. It

presents n ‘hing requiring clarification or correction by

this Court.

A. The Third Circuit correctly held that

Borden has no right to disobey the

District’s policy.

There is no dispute that Borden seeks to bow and

take a knee for team prayer in his official capacity as

a public-school coach. Indeed, he candidly explains that

he employs those activities as a teaching tool. For four

decades, however, this Court and the lower courts have

uniformly recognized that school districts, not

individual employees, have the final say in choosing

the curriculum and teaching methods for the schools

they operate.

As then-Judge Alito put it for a prior Third Circuit

panel, “no court has found that teachers’ [or coaches’]

First Amendment rights extend to choosing their own

curriculum or classroom management techniques in

contravention of school policy or dictates.” Edwards,

156 F.3d at 491. Borden cites no contrary authority.®

S As for Borden's freedom-of-association, privacy, and autonomy

claims, the first failed because public-school football teams and

their state-employed coaches are neither expressive associations,

nor intimate ones. Pet. App. 40a-4la & n.15 (quoting Boy Scouts

of Am. v. Dale, 530 U.S. 640, 648 (2000); Bd. of Dirs. of Rotary Int?

v. Rotary Club, 481 U.S. 537, 545-547 (1987); Roberts v. U.S.

Jaycees, 468 U.S. 609, 619-620 (1984)). The other two failed

because state employees do not enjoy the same rights when

25

What is more, the School District would have had

the authority to enforce its policy, even if Borden did

have some legally cognizable interests at stake here,

and it would not have had to show that Borden’s

conduct goes so far as to violate the Establishment

Clause. The District has the right to prohibit teachers’

conduct (even when constitutional rights may

genuinely be at issue) if that conduct inhibits the

District’s ability to “operate [its schools] efficiently and

effectively.” Tenn. Secondary Sch. Athletic Ass’n v.

Brentwood Academy, 1275S. Ct. 2489, 2495-2496 (2007)

(internal quotation marks and citation omitted); accord

Pickering, 391 U.S. dt 572-573 (teacher’s speech

unprotected if it “in any way either impede[s] the

teacher’s proper performance of his daily duties in the

classroom or * * * interfere[s] with the regular

operation of the schools generally”). Fragmentation of

the student body along religious lines, vituperative

attacks on students who complain, and threats of

litigation from parents all hamper school adminis-

tration and harm the learning environment. Thus,

whether or not Borden’s desired conduct would violate

the Establishment Clause, the District had strong

reasons to regulate it.’

performing their official public functions as they do when in their

own homes. Pet. App. 42a-43a (explaining that Borden premises

his privacy and autonomy claims on cases like Griswold v.

Connecticut, 381 U.S. 479 (1965), and Lawrence v. Texas, 539 U.S.

558 (2003)).

7 Cf. Grossman, 507 F.3d at 1100 (Posner, J.) (‘Even if it is

certain that there is no danger of a suit, the school authorities

have a right * * * to control the policies of * * * [their] staff.”);

Marchi v. Bd. of Coop. Educ. Serus., 173 F.3d 469, 476 (2d Cir.

26

B. The Third Circuit correctly determined

that Borden’s conduct violates the

Establishment Clause.

Although the Third Circuit was correct that there

was no need here to decide the Establishment Clause

questicn, it was equally correct in the answer that it

gave: Borden’s actions violate the Establishment

Clause.

Under Santa Fe, the court below properly concluded

that “[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 prayer,” as well

as his decision to “resign{] from his position as coach of

the team rather than continue as coach without

engaging in the prayer activities,” and would therefore

“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.” Pet. App. 50a,

o3a-504a.

Moreover, when Borden declares loudiy and

repeatedly that team prayer is vital to “team solidarity,

team cohesion, and team seriousness of purpose” (C.A.

App. 441), and then bows and takes a knee for the

prayers at mandatory team events — after having

personally spent two decades orchestrating and leading

those prayers — he can hardly be said to be taking a

1999) (Newman, J.) (‘(W]hen [a school district] endeavors to police

itself and its employees in an effort to avoid transgressing

Establishment Clause limits, it must be accorded some leeway,

even though the conduct it forbids might not inevitably be

determined to violate the Establishment Clause.”).

27

“hands-off approach to student prayer (Santa Fe, 530

U.S. at 305). He has instead thrown the weight of his

authority as coach behind the team prayers. It would

be unreasonable to expect a student, upon seeing

Borden take a knee and bow his head for team prayer,

to get up, leave the huddle, and risk branding himself

as not being a team player or a member of the coach’s

“family unit.” Compare C.A. App. 72, 441-442, with

Santa Fe, 530 U.S. at 311-312, and Lee, 505 U.S. at

593-596. And a non-anonymous team vote on whether

to continue having prayers “does nothing to protect

minority views but rather places the students who hold

such views at the mercy ofthe majority.” Santa Fe, 530

U.S. at 304-305.

CONCLUSION

The petition for a writ of certiorari should be

denied.

28

Respectfully submitted.

MATTHEW J. GIACOBBE AYESHA N. KHAN

Scearinct & Hollenbeck, RICHARD B. KATSKEE

LLC Counsel of Record

1100 Valley Brook Ave. Americans United for

P.O. Box 790 Separation of Church

Lyndhurst, NJ 07071 and State

(201) 896-4100 518 C St., NE

Washington, DC 20002

(202) 466-3234

Counsel for Respondents

DECEMBER 2008