HELMAN.

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COMMENT

BORDEN V. EAST BRUNSWICK

SCHOOL DISTRICT: CLARIFYING
FIRST AMENDMENT
JURISPRUDENCE IN THE PUBLIC
SCHOOL CONTEXT

Eric M. Helman*

Abstract: When does a public school employee cross the line between
acceptable supervision of student prayer sessions and impermissible
participation? Is the line crossed if a high school football coach takes a
knee and silently bows his head with his players as they pray before taking
the field? According to the District Court for the District of New Jersey, the
answer is no. This holding instantly generated a great deal of uncertainty for
school districts and religious groups across the country. This Comment
analyzes First Amendment jurisprudence in the public school context and
exposes how the vagueness of the current law fueled the controversy and
subsequent confusion in Borden. This Comment urges the Supreme Court to
directly review this matter and adopt a bright-line standard, the Purpose of
Congregation Test, in order to clarify the law in this critical context and
protect the underlying principles of the First Amendment.

* Candidate for Juris Doctor, New England School of Law (2008); B.S., Finance,
Rutgers Business School, Rutgers University (2004).

363
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364 NEW ENGLAND LAW REVIEW [Vol. 42:363

INTRODUCTION
Marcus Borden (Borden) served as the head football coach at East
Brunswick High School in New Jersey for the past twenty-three years.1 In
December of 2005, Borden filed suit against his employer, the East
Brunswick School District (the School District), alleging that the School
District violated his constitutional rights by exorbitantly restricting his
conduct during student-initiated, student-led, pre-game prayers.2 The
School District promulgated directives that prohibited Bordens
participation in all team prayers to avoid potential litigation after several
complaints were filed with the Superintendent of Schools.3 Although
Borden actively participated in the prayers for over twenty years, he

1. Deposition of Marcus A. Borden at 7, Borden v. E. Brunswick Sch. Dist., No. 05-

5923 (D.N.J. Apr. 24, 2006) [hereinafter Deposition of Marcus Borden]. Marcus Borden is a
nationally recognized head coach who has received several prestigious awards. See
Declaration of Marcus A. Borden para. 4, Borden v. E. Brunswick Sch. Dist., No. 05-5923
(D.N.J. June 22, 2006) [hereinafter Borden Declaration]. In 2003, Borden received the
Most Caring Coach Award from USA Weekend Magazine. Dennis McCafferty, Meet Our
Most Caring Coaches, USA WEEKEND MAGAZINE, Oct. 12, 2003, available at
http://www.usaweekend.com/03_issues/031012/031012mcc.html. In 2004, Borden was
named national high school football coach of the year. Borden Declaration, supra, para. 4.
Borden also is the founder of the Snapple Bowl, an all-star charity football game that has
raised over $135,000 for local children with disabilities. McCafferty, supra. Bordens
reputation in his community as an honorable man seemed to impact this case in several
instances. See infra notes 154, 171 and accompanying text.
2. See Karen Crouse, The Name of the Game Is Football, but the Issue in One Town Is
Prayer, N.Y. TIMES, Nov. 25, 2005, at D1, available at 2005 WLNR 19017367.
3. See Certification of Dr. Jo Ann Magistro paras. 3-4, Borden v. E. Brunswick Sch.
Dist., No. 05-5923 (D.N.J. July 6, 2006) [hereinafter Magistro Declaration]. The parents of
current players who allegedly filed complaints chose to remain anonymous out of fear of
potential backlash from Borden or his supporters. See id. para. 3. Although the
Superintendent of Schools asserted that numerous individualsincluding students, parents,
and other teacherscame forward with complaints regarding Bordens conduct, Borden
repeatedly questioned the sincerity of the objections. Compare id. ([C]ontrary to
[Bordens] assertion that there were no or only minimal complaints regarding his
participation . . . I received specific complaints from a number of different sources.)
(statement of the Superintendent of Schools), with Transcript of Proceedings at 26-27,
Borden v. E. Brunswick Sch. Dist., No.05-5923 (D.N.J. July 25, 2006) [hereinafter
Transcript of Proceedings], available at http://thnt.com/assets/html/B535522726.HTM
(Theres not a shred of any evidence from any complaining person . . . . [I]f you have a
burden to show that somebodys complaining about the activity of Coach Borden, that
somebody has got to stand on their two feet and say, Im complaining.) (statement of
counsel for Borden).
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 365

claimed that he was willing to comply with the directives because, as he

put it, he was not a preacher and did not want to become a distraction to
his team.4 While the two sides appeared to agree that the coach would no
longer participate in the prayers, they ultimately were unable to agree on
what constituted participation and turned to the courts for clarification.5
In his lawsuit, Borden claimed to take the minimalist approach and
petitioned only for the right to show deference and respect for his players
while they prayed.6 The School District argued that Bordens requested
relief constituted an external manifestation of prayer and was a subterfuge
designed to enable the coach to continue his participation while avoiding
constitutional restraints.7 Borden however repeatedly affirmed that he
would no longer pray and only wanted to be released from the shackles
and straightjacket he felt the School Districts directives had placed on
him.8
With no direct precedent to rely on and no clear analytical framework
to apply, the District Court for the District of New Jersey held that the
School Districts overbroad and vague prohibitions violated the coachs
constitutionally protected right to show respect for his players.9 The court
gave deference to the unique relationship between a coach and his players,
football tradition, and Bordens repeated affirmations that he would no
longer pray.10 As such, the court granted Borden his requested relief and
held that the coach could take a knee and silently bow his head with his
players as they prayed without violating the Establishment Clause.11
This Comment analyzes First Amendment jurisprudence in the public
school context and exposes how the vagueness of the current law fueled the

4. See Coach Quits After Prayer Squabble, CBS NEWS.COM, Oct. 12, 2005, http://www
.cbsnews.com/stories/2005/10/12/national/main937192.shtml; Borden Declaration, supra
note 1, paras. 11, 13.
5. Borden Declaration, supra note 1, paras. 8-10.
6. See Transcript of Proceedings, supra note 3, at 21. Typically in First Amendment
cases in the public school context, it is the student who initiates legal action, but in this case
it was Borden, the school employee, seeking an injunction and declaratory relief. See
Borden Declaration, supra note 1, para. 24.
7. See Defendants Brief in Support of Motion for Summary Judgment at 14-15,
Borden v. E. Brunswick Sch. Dist., No.05-5923 (D.N.J. July 15, 2006) [hereinafter
Defendants Brief].
8. Transcript of Proceedings, supra note 3, at 18, 20.
9. See id. at 45-46; Stan Grossfeld, An Issue of Fair Pray: Disagreement Sends Coach,
School to Court, BOSTON GLOBE, Nov. 7, 2006, at D1.
10. See Transcript of Proceedings, supra note 3, at 42.
11. Id. at 42-45.
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366 NEW ENGLAND LAW REVIEW [Vol. 42:363

controversy and subsequent confusion in Borden.12 Part I begins by

providing a brief discussion of the complex dynamics of the coach-player
relationship and the prevalence of prayer in high school football to show
why First Amendment cases in this context demand critical attention.13 Part
I then examines Bordens precise conduct, the prayers at issue, and the
School Districts directives in order to determine how the underlying
conflict actualized.14 Part II analyzes First Amendment jurisprudence in the
public school context to determine the current law of the land.15 This is no
small task as courts across the country have yielded a myriad of
responses to this difficult question,16 and the Supreme Court has
articulated three different and inconsistent tests.17 Part III presents the
arguments proffered by each party during the proceedings and examines
the district courts holding.18
Part IV begins by discussing the impact of the courts holding and
identifying the issues left unresolved by Borden.19 Although earlier First
Amendment Supreme Court cases dealt with more straightforward religious
issues, recent decisions have addressed more refined issues of prayer in
school.20 The issues left unresolved by Borden are the type of refined
issues that need to be addressed by the Supreme Court in order to prevent
similar disputes from arising in the futurewhich is extremely likely to
occur under the law as it currently stands.21 Part IV of this Comment
concludes by proposing a bright-line standardthe Purpose of
Congregation Testthat the Supreme Court should adopt in order to
clarify First Amendment Jurisprudence in this critical context.22

12. See infra Part III.

13. See infra Part I.A-B.
14. Infra Part I.C.
15. Infra Part II.
16. Sara R. Grossman, Comment, The Football Game Prayer Decision: How the
Supreme Court Dropped the Ball in Santa Fe, 38 HOUS. L. REV. 615, 616 (2001).
17. Id.
18. See infra Part III.
19. See infra Part IV.
20. Mark W. Cordes, Prayer in Public Schools After Santa Fe Independent School
District, 90 KY. L.J. 1, 1-2 (2002).
21. See id.
22. See infra Part IV.C.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 367

I. BACKGROUND
Although the mandates of the Establishment Clause apply to all
public school employees,23 First Amendment controversies in the
extracurricular-athletic context demand special attention due to the
complex dynamics of the coach-player relationship and intense peer-
pressure.24 To properly analyze Bordens conduct it is imperative to
understand and acknowledge these unique factors.25

A. The Complexities of the Coach-Player Relationship

The coach-player relationship, particularly at the high school and
college levels, is often an extremely close mentor-like relationship.26
Student-athletes often feel closer to a coach than any other older person
and seek parental type assistance from them.27 Due to the tremendous
influence coaches have on their players, manyif not allcoaches believe
that they must preach certain values to their players and assist in their
development as individuals.28 Coaches strive to teach the fundamentals of
the game in a way that instills core values in their players and makes them
better people.29 Borden describes his role as a coach as not only to win
games but also to teach his players how to be good persons and good
citizens with good morals, good values, and good principles.30

23. See, e.g., Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 (5th Cir. 1995)
(applying the law uniformly to coaches and other school employees . . . present as
representatives of the school).
24. See infra Part I.A.
25. See infra Parts I.A, III.
26. See Gil Fried & Lisa Bradley, Applying the First Amendment to Prayer in a Public
University Locker Room: An Athletes and Coachs Perspective, 4 MARQ. SPORTS L.J. 301,
311 (1994); see also infra note 107.
27. Fried & Bradley, supra note 26, at 311 (citing Harry M. Cross, The College Athlete
and the Institution, 38 LAW & CONTEMP. PROBS. 150, 168-69 (1973)).
28. See DANIEL GOULD ET AL., NFL CHARITIES GRANT PROJECT, EXAMINING STRATEGIES
OUTSTANDING HIGH SCHOOL FOOTBALL COACHES USE TO DEVELOP LIFE SKILLS AND
CHARACTER IN THEIR PLAYERS 2 (2002), available at http://ed-web3.educ.msu.edu
/ysi/articles/NFLCharitiesCoachingLifeSkills.pdf (Americas greatest coaches are not only
committed to teaching their players how to excel on the field, but in life as well. . . . [L]ife
skill and character development must be systematically taught to players.); Stan Grossfeld,
For Some Local Schools, Prayer Is Part of the Tradition, BOSTON GLOBE, Nov. 7, 2006, at
D7, available at 2006 WLNR 19402671.
29. See Grossfeld, supra note 28.
30. Borden Declaration, supra note 1, para. 5. Borden describes the role of football in
developing student-athletes as follows:
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368 NEW ENGLAND LAW REVIEW [Vol. 42:363

Another factor that complicates the coach-player relationship is that

coaches often have a great deal of power and decision-making authority
and athletes are left in a powerless position.31 Coaches control playing time
and many scholars believe that the fear of retaliation explains the minimal
number of grievances filed against coaches by student-athletes in any
context.32 In most sports, the correct attitude is as important as actual
athletic skill, and once an athlete is labeled a troublemaker or uncoachable,
his athletic career is usually doomed.33 Pressure to go along with the
coach is even more pronounced in the high school context where students
will often feel societal and peer pressure and often lack the maturity to
make their own decisions.34 As evidence of these pressures, students who
were identified as being responsible for filing the complaints against
Borden were reportedly taunted and bullied by some of Bordens
staunchest supporters.35

B. The Tradition and Prevalence of Prayer in High School Football

One of the most common ways that many coaches try to instill values
in their players is the use of prayer and faith.36 According to the current

The game of football is a team sport. It emphasizes important

moral and ethical values of self-discipline, sacrifice, and the ability to
cope with adversity. For more than a century football has helped young
men develop a good character, strong moral and ethical values, good
citizenship traits, and a willingness to sacrifice personal glory for the
success of the team. . . . Players and coaches also develop unity and a
team identity by following team rituals and team traditions as a team.
. . . I know from my own experience that by holding on to a moral belief
system, nurtured by the game of football, that student-athletes can and
do overcome racial and social barriers . . . .
Id. para. 23.
31. Robert L. McGahey, Jr., A Comment on the First Amendment and the Scholar-
Athlete, 6 HUM. RTS. 155, 157 (1977).
32. Fried & Bradley, supra note 26, at 311. Many coaches, perhaps somewhat naively,
cite the lack of complaints as a sign that players and parents do not have a problem with
their conduct. See Grossfeld, supra note 28; see also, e.g., sources cited supra note 3.
33. Fried & Bradley, supra note 26, at 310-11 (internal citations omitted).
34. See id. at 311.
35. Doug McKenzie, EBHS Coachs Resignation Sparks Nationwide Debate, SENTINEL,
Oct. 13, 2005, at A1, available at http://ebs.gmnews.com/news/2005/1013/Front_Page
/002.html; see also Magistro Declaration, supra note 3, ex. A. In an effort to illuminate the
severity of this conflict the Superintendent of Schools attached nearly thirty pages of
shocking postings found on a local Internet message board directed at Jewish cheerleaders
who were believed to have filed the complaints. See id.
36. See Grossfeld, supra note 28.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 369

executive director of the American Football Coaches Association, over

fifty percent of high school coaches participate in some sort of prayers with
their players.37 Many of these coaches consider these prayers to be an
important part of football tradition and crucial to the development of proper
values in their players.38
There are many other schools and coaches, however, who choose not
to take part in any team prayers.39 These coaches still believe in teaching
values to their players but believe that church is the proper place for
prayernot the football field.40 As one high school coach and athletic
director explains: We dont do anything. I never used any of that. Church
is a wonderful place for that. Its a private issue. . . . There certainly has
been a tradition of that in football. Its tough to break those traditions.41

C. Bordens Conduct and the Prayers at Issue

Members of the East Brunswick High School football team have
participated in pre-game prayers for the past twenty-five years.42 During
Bordens tenure there have been two prayers typically recited before each
gamethe dinner prayer and the locker room prayer.43

1. The Dinner Prayer

The dinner prayer is a grace recited just before the teams pre-game
meal in the cafeteria.44 This meal is attended not only by players and
coaches, but also by student managers, trainers, cheerleaders, and other
invited guests.45 From the time Borden took over as head coach until

37. See Grossfeld, supra note 9. This tradition is not unique to high school athletics and
many scholars assert that prayer plays an even more significant role in college and
professional athletics. See generally Affiliation The Use of Prayer in Sport: Implications for
Sport Psychology Consulting, ATHLETICINSIGHT.COM: THE ONLINE JOURNAL OF SPORT
PSYCHOLOGY, http://www.athleticinsight.com/Vol7Iss4/PrayerinSports.htm#Introduction
(discussing the impact and prevalence of religion at all levels of athletics) (last visited Mar.
29, 2008).
38. See Grossfeld, supra note 9; see also Linda P. Campbell, The Other Football
Huddle, LONG BEACH PRESS-TELEGRAM, Oct. 22, 2007, available at 2007 WLNR 20701162
(There might not be crying in baseball, but there is praying in football.).
39. See Grossfeld, supra note 28.
40. See id.
41. Id.
42. Borden Declaration, supra note 1, para. 16. This was a tradition that pre-dated
Bordens tenure as head coach. See id.
43. Deposition of Marcus Borden, supra note 1, at 7-8, 15, 16-20.
44. Id. at 15-17.
45. Id. At the dinner, coaches sit together at separate tables with other coaches, players
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approximately 1997, one or more local religious leaders attended the pre-
game dinner and led the prayer.46 Following the 1997 season through the
2003 season, a student assumed the responsibility of saying the prayer
while a local clergy member remained in attendance and prepared the
prayer.47 Since the 2003 season, and at the demands of the schools athletic
director, the clergy member stopped attending the dinner and Borden led
the prayer before the first game of the season with a senior member of the
team leading the prayer for the remainder of the season.48
Borden typically initiated the dinner prayer by asking everyone in
attendance to stand.49 According to Borden, some people would bow their
heads and others would just stare off into the distance.50 The actual
words of the dinner prayer were never expressly articulated in Bordens
deposition or declaration, but according to Borden the word God was
likely never mentioned.51 However, Borden described the dinner prayer as
a moment of time in giving thanks to the Lord and an opportunity to take
the focus off themselves for once.52

2. The Locker Room Prayer

According to Borden, the locker room prayer is one aspect of a pre-
game routine in which the team collectively takes a knee prior to taking the
field.53 Borden and his assistant coaches initiated the routine by calling for
the team to come together and take a knee.54 Borden would stand before
his team and reemphasize the tactics and strategy they hoped to employ in
the game.55 After stressing several other focus points, Borden would then
take a knee with his players and join them in prayer.56 The locker room

sit with other players, cheerleaders with other cheerleaders, etc. See id. at 27. This element
of separation distinguishes Bordens conduct during the dinner prayer from that of the
locker-room prayer where he physically joins his players. See supra and infra Part I.C.1-2.
46. Deposition of Marcus Borden, supra note 1, at 17-20.
47. Id.
48. Id. at 20-21. Although Borden no longer led the prayer, he assumed the
responsibility of choosing the student who would deliver the pre-meal prayer. See
Deposition of Dr. Jo Ann Magistro at 91-96, Borden v. E. Brunswick Sch. Dist., No. 05-
5923 (D.N.J. June 15, 2006) [hereinafter Magistro Deposition].
49. See Deposition of Marcus Borden, supra note 1, at 27.
50. Id. at 30.
51. See id.
52. Id.
53. Borden Declaration, supra note 1, para. 20.
54. Deposition of Marcus Borden, supra note 1, at 14.
55. Id.
56. Id. This was Bordens conduct before the District issued its directives. See id. In his
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 371

prayer is recited substantially 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
families and our community well. Lastly, please guide our
players and opponents so that they can come out of this game
unscathed, no one is hurt.57

D. The School Districts Directives

On the morning of October 7, 2005, the Superintendent of Schools,
Dr. Jo Ann Magistro (Magistro) and the School Districts attorney
summoned Borden to a meeting.58 Magistro informed Borden that several
parents complained to the School District regarding his involvement in
team prayers and that he had to cease his participation immediately.59
Borden told Magistro that he was willing to comply with the orders but was
confused as to what constituted permissible conduct.60 When Borden asked
for further clarification as to what he, and his assistant coaches, could and
could not do while his players engaged in prayer, Magistro and the School
Districts attorney simultaneously provided contradictory responses.61 At
this point Magistro recognized the need to provide Borden with a clearer
set of guidelines and told the School Districts attorney to get her
something in writing before the end of the day.62
At the conclusion of the school day, approximately one-hour prior to
the start of pre-game activities, Borden once again was summoned to the
main office.63 The assistant principal handed Borden a memo from

lawsuit, Borden petitioned to the court to be permitted to continue taking a knee with his
players in this manner but pledged he would no longer pray with them. Borden
Declaration, supra note 1, para. 24. The coach promised that he would not move [his]
lips, say any words, join [his] hands together, or close [his] eyes while the players prayed
and only wanted to take a knee out of deference and respect. Id.
57. Deposition of Marcus Borden, supra note 1, at 14.
58. Borden Declaration, supra note 1, paras. 8-9. The Districts attorney was not
physically present at the meeting but participated through a speakerphone. Id. para. 9.
59. Id. paras. 8-10.
60. See id. paras. 9-10.
61. Id. Borden inquired whether he had to leave the room during the prayer or if he
could just stand there and bow my head out of respect. Magistro responded Yes and the
Districts attorney responded No. Id. para. 9.
62. Id.
63. Id. para. 10.
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372 NEW ENGLAND LAW REVIEW [Vol. 42:363

Magistro and a letter from the School Districts attorney.64 The letter
provided what were described as preliminary guidelines for Borden to
follow and Magistros memo indicated that failure to comply with these
guidelines would be viewed as insubordination.65 After reviewing the
directives Borden was still unclear as to what conduct was prohibited.66
According to Borden, some of his questions that remained unanswered
were: Do I have to leave the room? Do I stay seated? What actually is
participation?67 From his past experiences Borden believed that
insubordination was a serious offense that could result in his losing both his
coaching and teaching jobs.68 With only a few minutes left before the start
of pre-game activities and no one around to provide further clarification,

64. Borden Declaration, supra note 1, para. 10.

65. Id.
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.
Letter from Martin R. Pachman, Attorney at Law, Martin R. Pachman, P.C., to Dr. Jo Ann
Magistro, Superintendent of Sch., E. Brunswick Bd. of Educ. (Oct. 7, 2005) (on file with
author); see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 300-01 (2000) (citing the
principles established in Duncanville).
As per our conference this morning . . . the attorney for the Board
of Education, has supplied preliminary guidelines concerning the legal
status of prayer by students and/or faculty in the context of athletic
events. As we discussed, this is not a matter of our personal feelings on
this issue, but rather a legal matter which we must address to protect the
school district from potential litigation. While you stated your
disappointment in not being able to continue a traditional practice
with your team, it is my expectation that you will comply with the
directive to cease any activity that places the district in jeopardy. Not to
comply will be viewed as insubordination.
Memo from Dr. Jo Ann Magistro, Superintendent of Sch., E. Brunswick Bd. of Educ., to
Marcus Borden, Head Football Coach, E. Brunswick High Sch. (Oct. 7, 2005) (on file with
author).
66. Borden Declaration, supra note 1, para. 10.
67. Id.
68. Id.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 373

Borden reluctantly decided to tender his immediate resignation.69

E. Bordens Lawsuit
Approximately one week later Borden withdrew his resignation and
agreed to coach the team for the rest of the season.70 In withdrawing his
resignation, Borden stressed that he was doing so without prejudice to
pursue all of his rights afforded by the law.71 Borden finished the 2005
season without any further controversy and complied with the School
Districts preliminary guidelines.72 Borden, however, felt like he had to
walk[] on egg shells for the entire year and considered the directives to
be personally degrading.73 Upon completing the season, Borden filed suit
against the School District in order to protect his freedom as a person, as
an American citizen, and as a high school football coach to show respect
and deference for [his] players while they participated in prayer.74

II. FIRST AMENDMENT JURISPRUDENCE IN THE PUBLIC SCHOOL

CONTEXT

A. The Establishment Clause vs. the Free Exercise Clause

So far as religion is concerned, the First Amendment to the United
States Constitution consists of two distinct clausesthe Establishment
Clause and the Free Exercise Clause.75 The Establishment Clause requires
government neutrality between different religions and between religion and
non-religion.76 The Free Exercise Clause prohibits the government from
interfering with an individuals religious practices.77 Under the doctrine of

69. Id.; Email from Marcus Borden, Head Football Coach, E. Brunswick High Sch., to
Frank Noppenberger, Athletic Director, E. Brunswick High Sch. (Oct. 7, 2005, 21:50:01
EST) (on file with author).
70. Letter from Ronald J. Riccio, Professor of Law, Seton Hall Univ. Sch. of Law, to
Mr. Martin Pachman, Attorney at Law, Martin R. Pachman, P.C. (Oct. 17, 2005) (on file
with author).
71. Id.
72. Borden Declaration, supra note 1, para. 10. Although the guidelines were described
as preliminary they were never updated or modified. See Transcript of Proceedings, supra
note 3, at 28.
73. Borden Declaration, supra note 1, para. 10.
74. Id. para. 24.
75. U.S. CONST. amend. I. (Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . .).
76. See Bd. of Educ. v. Grumet, 512 U.S. 687, 702 (1994).
77. John E. Burgess, Recent Development, Lambs Chapel v. Center Moriches Union
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374 NEW ENGLAND LAW REVIEW [Vol. 42:363

incorporation, both the Establishment Clause and the Free Exercise Clause
are applicable to the states pursuant to the Due Process Clause of the
Fourteenth Amendment.78 The two clauses often conflict with each other
and nowhere is this more apparent than in the public school context.79
In the public school context the conflict between the Establishment
Clause and the Free Exercise Clause arises when one individuals freedom
of religious belief impedes another individuals freedom of religious
practice.80 The state bears the responsibility of balancing these rights in
order to relieve any potential tensions that may exist.81 Although a public
school employee may have the right to invoke his or her free exercise rights
as a private citizen, the employee must understand that he or she does not
retain the full scope of his or her rights while in the course of
employment.82 In order to constitutionally transgress this right, the state
action must pass strict scrutinymeaning it must serve a compelling state
interest and be narrowly tailored to achieve that interest.83 Courts have
been clear that the interest of the State in avoiding an Establishment
Clause violation may be [a] compelling one sufficient to infringe on the
free exercise rights of another individual, be it an employee or another
student.84

B. The Three Tests

Over the years the Supreme Court has articulated numerous tests to
determine Establishment Clause violations.85 There are three tests that

Free School District, 113 S. Ct. 2141 (1993): A Critical Analysis of the Supreme Courts
First Amendment Jurisprudence in the Context of Public Schools, 47 VAND. L. REV. 1939,
1948 (1994).
78. See Wallace v. Jaffree, 472 U.S. 38, 49 (1985); Cantwell v. Connecticut, 310 U.S.
296, 303 (1940).
79. Daniel N. McPherson, Student-Initiated Religious Expression in Public Schools: The
Need for a Wider Opening in the Schoolhouse Gate, 30 CREIGHTON L. REV. 393, 393
(1997).
80. Id.
81. See id. at 394-95.
82. Marchi v. Bd. of Coop. Educ. Serv., 173 F.3d 469, 476 (2d Cir. 1999).
83. See, e.g., Widmar v. Vincent, 454 U.S. 263, 269-70 (1981).
84. Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993)
(quoting Widmar, 454 U.S. at 271) (alteration in original); see also Marchi, 173 F.3d at 476
([T]he employees rights must sometimes yield to the legitimate interest of the
governmental employer in avoiding litigation . . . .); Lee v. Weisman, 505 U.S. 577, 587
(1992) (The principle that government may accommodate the free exercise of religion does
not supersede the fundamental limitations imposed by the Establishment Clause.).
85. See Grossman, supra note 16, at 618-22.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 375

courts most often applythe Lemon Test, the Endorsement Test, and the
Coercion Test.86 In different cases, the Supreme Court has applied all of
these tests, none of these tests, and most often some combination of the
three in order to best fit the facts of the case.87 Much of the confusion under
the law as it currently stands is due to the fact that the Court has not
mandated which test should be employed in any given set of circumstances,
leaving lower courts free to make this decision on an ad hoc basis.88

1. The Lemon Test

In Lemon v. Kurtzman,89 the Supreme Court articulated the first test to
measure Establishment Clause violations.90 In order to survive scrutiny
under the three-pronged Lemon Test,91 the challenged state action must
have a secular . . . purpose, . . . its principal or primary effect must be one
that neither advances nor inhibits religion, . . . [and it] must not foster an
excessive government entanglement with religion.92 The Lemon Test has
been the subject of much controversy and has oft been criticized by legal
scholars for being inconsistent, vague, and difficult to apply.93 Despite
these criticisms, the Lemon Test continues to be applied, and has been
affectionately described by at least one Supreme Court Justice as the only
coherent test of the Establishment Clause a majority of the Court ever
adopted.94

86. See infra Part II.B.1-3.

87. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308-12 (2000) (applying
all three tests and describing them as complementary and occasionally overlapping).
88. Grossman, supra note 16, at 620.
89. 403 U.S. 602 (1971).
90. See id. at 612-13.
91. See Marcia S. Alembik, Note, The Future of the Lemon Test: A Sweeter Alternative
for Establishment Clause Analysis, 40 GA. L. REV. 1171, 1174 (2006).
92. See Lemon, 403 U.S. at 612-13 (quoting Walz v. Tax Commn, 397 U.S. 664, 674
(1970)) (internal citation omitted).
93. See Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398
(1993) (Scalia, J., concurring) (analogizing the Lemon Test to a ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed
and buried); Fried & Bradley, supra note 26, at 303-04 (describing how Justices White,
Scalia, and Rehnquist attacked the Lemon Test in County of Allegheny v. ACLU, 492 U.S.
573, 606-07 (1989) for unduly limiting governments involvement with religion); Michael
M. Maddigan, The Establishment Clause, Civil Religion, and the Public Church, 81 CAL. L.
REV. 293, 299-300 (1993) (describing the Lemon Test as confusing and vague).
94. Wallace v. Jaffree, 472 U.S. 38, 63 (1985) (Powell, J., concurring) (responding to
criticism of the Lemon Test).
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376 NEW ENGLAND LAW REVIEW [Vol. 42:363

2. The Endorsement Test

The Endorsement Test is a modified version95 of the Lemon Test
and considers whether the school employee intended to convey a message
of endorsement or disapproval of religion, and secondly, whether the
conduct at issue actually had the effect of communicating a message of
government endorsement or disapproval of religion.96 The Establishment
Clause is violated if a fully informed reasonable observer would
believe that an individual is being forced into praying or if the state action
could be construed by the person being affected as an endorsement of
religion.97 The Endorsement Test broadened the Courts scrutiny by
abandoning the deference and presumption of secularity given to
governmental policy under the Lemon Test.98

3. The Coercion Test

In Lee v. Weisman,99 the Court articulated another standard to
determine Establishment Clause violations. The Coercion Test examines
the schools control over the religious activity and asks whether the
students were coerced or pressured into participation.100 Many scholars
believe the Coercion Test went a step beyond the Endorsement Test and
sharpened the effect prong of the Lemon Test by examining the actual
effect of the government action, rather than merely its appearance.101
Others have criticized the Coercion Test for, like the Endorsement Test,
not requiring actual coercion but only the appearance of it.102

95. Alembik, supra note 91, at 1181-83 (citing Emilie Kraft Bindon, Comment,
Entangled Choices: Selecting Chaplains for the United States Armed Forces, 56 ALA. L.
REV. 247, 265 (2004)) (describing how the Endorsement Test was intended to clarify the
Lemon Test).
96. Lynch v. Donnelly, 465 U.S. 668, 690-92 (1984) (OConnor, J., concurring).
97. County of Allegheny v. ACLU, 492 U.S. 573, 620 (1989) (quoting Witters v.
Washington Dept of Servs. for the Blind, 474 U.S. 481, 493 (1986) (OConnor, J.,
concurring in part and concurring in judgment)); see also Fried & Bradley, supra note 26, at
304-05.
98. Jeremy Speich, Note, Santa Fe Independent School District v. Doe: Mapping the
Future of Student-Led, Student-Initiated Prayer in Public Schools, 65 ALB. L. REV. 271,
277-78 (2001).
99. 505 U.S. 577 (1992).
100. Grossman, supra note 16, at 621-22 (citing Jones v. Clear Creek Indep. Sch. Dist.,
977 F.2d 963, 970 (5th Cir. 1992)).
101. See, e.g., Alembik, supra note 91, at 1184.
102. Id.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 377

C. Doe v. Duncanville Independent School District103

In Duncanville, the Fifth Circuit Court of Appeals was presented with
an Establishment Clause controversy after a seventh-grade girl and her
father objected to the schools basketball coach initiating and participating
in team prayers.104 The court relied on a combination of the Lemon Test,
Endorsement Test, and the Coercion Test, and held that the school violated
the Establishment Clause by permitting its employees to lead, encourage,
promote, or participate in prayers with students during curricular or extra-
curricular events.105 The court stressed that an employees free exercise
rights do not supercede the fundamental limitations imposed by the
Establishment Clause,106 and added that coaches are present as
representatives of the school and their actions are representative of [school]
policies whether or not this is what they intend.107
The court also declared that its holding did not prevent public school
employees from treating students religious beliefs and practices with
deference and respect and in fact the Constitution required this of
them.108 The court explained that public school employees do not need to
make their non-participation vehemently obvious or to leave the room
when students pray109 but did not provide any further explanation as to
where this line would be crossed.110 The only other elucidation the court
provided was innocuously included in a footnote and stated that the line
between respect for religion and endorsement of religion would be crossed

103. 70 F.3d 402 (5th Cir. 1995) (2-1 decision). This case was a 2-1 Fifth Circuit decision
and was not binding on the court in Borden. See Brief in Opposition to Defendants Motion
for Summary Judgment and in Support of Plaintiffs Cross-Motion for Summary Judgment
at 17, Borden v. E. Brunswick Sch. Dist., No.05-5923 (D.N.J. July 25, 2006) [hereinafter
Plaintiffs Brief]. However, because the Supreme Court has not heard an Establishment
Clause case in this exact context it represented the highest court to articulate the law in this
area and was cited by both parties. See id.; Defendants Brief, supra note 7, at 24. The
School District also relied on the language from this case to draft Bordens preliminary
guidelines. See infra note 105 and accompanying text.
104. 70 F.3d at 404.
105. Id. at 405 (emphasis added). This was the language counsel for Borden relied on in
drafting the Districts preliminary guidelines. See supra note 65.
106. Duncanville, 70 F.3d at 406 (quoting Lee v. Weisman, 505 U.S. 577, 587 (1992)).
107. Id. (citing Bishop v. Aronov, 926 F.2d 1066, 1073 (11th Cir. 1991)). The court
stated that this was especially true in the public school context where students often emulate
teachers as their role models. Id.; see also Bd. of Educ. of Westside Cmty. Sch. v. Mergens,
496 U.S. 226, 251 (1990) (citing Edwards v. Aguillard, 482 U.S. 578, 584 (1987)).
108. Duncanville, 70 F.3d at 406 n.4.
109. Id.
110. See id.
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378 NEW ENGLAND LAW REVIEW [Vol. 42:363

if a school employee join[ed] hands in a prayer circle or otherwise

manifest[ed] approval and solidarity.111 While this represented more of an
explanation than past courts had articulated, the court still did not
completely explain to what extent school employees may supervise
student prayers.112 Judge Jones tried to expand upon these issues somewhat
in her concurrence and dissent but ultimately decided that the line between
deference and sympathetic reverence is a fine one that cannot and should
not be policed.113 According to Judge Jones, teachers may not actively
join[] in the student-led prayers, e.g., by joining hands in the prayer circle,
but a federal court also may not insist upon a purge of the teachers
spiritual response to student prayers.114

D. The Law Before Borden

The vagueness of the standards articulated by the Supreme Court has
caused the case law in this area to grow very complex and there seems to
exist a case for and against each proposition furthered by any party.115
While many issues remain unresolved, there appear to be several
reasonably established points of law in this area that were not disputed by
either party during the proceedings.116 First, student-initiated, student-led
prayer is constitutionally protected.117 Second, a public school employee
teacher or coachmay not initiate, lead, encourage, promote, or otherwise
actively participate in student prayers as this is an obvious impermissible
endorsement of religious activity.118 Third, the school employee does not
have to turn his or her back to the prayers or manifest disapproval of the
religious activity while supervising students or players; in fact the law

111. Id.
112. Id. at 410 (Jones, J., concurring and dissenting); see id. at 406 n.4 (majority
opinion). In her concurrence and dissent, Judge Jones argued that what constitutes
supervision at athletic contests is ambiguous and [a]t a broad level, everything that
goes on during practice or competition, including student-initiated locker-room . . . prayer,
is subject to the coaches supervision. Id. at 410 (Jones, J., concurring and dissenting).
Judge Jones concluded that the courts decision must pertain only to active supervision and
is thus redundant of the cautions that the school may not promote, encourage, or lead
prayers. Id.
113. Id.
114. Duncanville, 70 F.3d at 409 (Jones, J., concurring and dissenting).
115. Transcript of Proceedings, supra note 3, at 40.
116. See infra text accompanying 117-19.
117. See Borden Declaration, supra note 1, para. 24; see also Amy Fagan, Coach Awaits
Ruling on Team Prayers, WASH. TIMES, Oct. 14, 2007, at A01, available at 2007 WLNR
20205769.
118. See, e.g., Duncanville, 70 F.3d at 409.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 379

requires that the teacher or coach show deference and respect for the
students decision to pray.119 Thus, the true unresolved issue appears to be
determining the line between impermissible participation and an
acceptable manifestation of deference and respect.120 This was the
precise issue presented to the district court in Borden and both parties had
very different conceptions of where the line existed.121

III. BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT

A. Bordens Requested Relief

Borden petitioned the court to engag[e] in symbolic conduct for the
secular purpose of showing respect and deference for his players while
they participated in pre-game prayer.122 Borden sought to manifest this
respect by silently bowing his head during the cafeteria prayer and by
taking a knee and bowing his head during the locker room prayer.123
Borden declared that he understood and intended to adhere to the
requirements of the Establishment Clause but did not agree with the School
Districts interpretation of what this mandated.124 Borden seemed to rely on
language from Judge Jones concurrence and dissent, and asserted that he
would not speak any words or join his hands with his players;
apparently this is where he believed the line would be crossed.125
Borden urged the court to apply the Endorsement Test as the Third
Circuit had in previous cases.126 According to Borden, a fully informed
reasonable observer would consider his taking a knee to be nothing
more than a football tradition and a sign of respect for his playersnot
impermissible participation.127 Borden argued that the reasonable observer
would be aware of the history and context of a football locker room, as well
as the fact that Borden stated that he would no longer pray.128

119. See id. at 406 n.4 (majority opinion).

120. See supra notes 114-18 and accompanying text; see also Fagan, supra note 117.
121. See infra Part III.A-B.
122. Plaintiffs Brief, supra note 103, at 4.
123. Id. at 11.
124. Id. at 11-12.
125. Id.
126. Id. at 43-44.
127. Id. at 53.
128. Plaintiffs Brief, supra note 103, at 9, 51.
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380 NEW ENGLAND LAW REVIEW [Vol. 42:363

B. The School Districts Argument

The School District asserted that Bordens requested relief constituted
impermissible participation of a school representative in student prayer.129
The School District questioned how Borden could claim that his requested
relief was not in any way of a religious nature and that no matter how he
tried to justify his conduct it amounted to unacceptable participation.130 The
School District accused Borden of professing a secular purpose to
camouflage what [was] in fact a religious practice131 and asserted that it
was the responsibility of the court to distinguish a sham secular purpose
from a sincere one.132
According to the School District, Bordens conduct violated the
Lemon Test, the coercion test and any other test designed to measure an
Establishment Clause violation.133 The School District argued that there
was no way to decipher what Borden was thinking when he engaged in this
conduct, and that a reasonable observer that witnessed him taking a knee
with his players while they were praying would believe that Borden was
also participating in the prayers.134 The School District urged the court to
consider Bordens actions in the context in which they were occurring, as
well as his past history of leading and actively participating in these
prayers.135 The School District acknowledged that Borden did not need to
leave the room or express his disapproval of the prayers, but that he should
just stand there as his players prayed.136 The School District cited the
potential overbearing influence of the coach on his players, as well as
many of the problems articulated earlier in this Comment, as demonstrating
the need for a clear, bright-line rule; one that could not be misinterpreted
by impressionable teenagers as an endorsement of religion.137

129. Defendants Brief, supra note 7, at 14-15.

130. Id.
131. Id. at 27.
132. Id. (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)) (internal
quotations omitted).
133. Id. at 22.
134. Transcript of Proceedings, supra note 3, at 12.
135. See id. at 9.
136. Id. at 11.
137. See id. at 13-14; supra Part I.A.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 381

C. The District Courts Holding

The court held that the School Districts directives were overbroad
and vague138 and held that Borden could passively participate in the
prayers by taking a knee and bowing his head as a token of his respect and
deference to his players.139 The court determined that the Endorsement Test
best fit the facts of the case and held that a fully informed reasonable
observer would not view Bordens conduct as an endorsement of
religion.140 The court agreed with Borden that taking a knee was a time-
honored football tradition and not a manifestation of prayer in this
context.141
The court appeared to identify the ultimate issue of the case
determining the line between participation and a manifestation of
deference and respectand then backed away, declaring it would be too
difficult to interpret and restrict every movement made by a coach.142 The
court took the easy way out by accepting Bordens requested relief and his
promises that he would no longer pray.143 The court also seemed to
overly rely on football tradition in reaching its decision and did not
explain why tradition played a role in this context anymore than it would in
upholding a seemingly unconstitutional practice in any other context.144

138. Transcript of Proceedings, supra note 3, at 45.

139. Id. at 42-45.
140. Id. at 42-44.
141. Id. at 43-44.
142. See id. at 43-45.
Thus we come down to what is considered participation. What is the
coach to do? Should he leave the room? Turn his back? Stand at
attention and not move a muscle? I dont think so. May he clasp his
hands? At what angle or degree is his head to be considered bowed?
May he crouch down, bend a knee, take a knee, or completely kneel? I
dont think its fair to ask a coach to do nothing.
Id. at 45.
143. Transcript of Proceedings, supra note 3, at 5, 46.
144. See id. at 43-44.
We cannot just look at this case in a vacuum. Tradition plays a part, and
the overall actions and responsibilities of a football coach should be
considered. . . . For the coach, who is looked at as the glue to hold all of
this together and foster team spirit, to not be allowed to participate in
these traditions even in the passive way just doesnt seem right. In fact,
to not to be able to acknowledge these pregame traditions in even a
passive participation would or could be looked at as disrespectful to and
undermining the sense of the team mentioned above.
Id. at 44.
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382 NEW ENGLAND LAW REVIEW [Vol. 42:363

IV. CLARIFYING FIRST AMENDMENT JURISPRUDENCE

A. Unresolved Issues and Problems Caused by the District Courts

Holding
The question of where the line exists between participation and
supervision still remains unanswered.145 In fact, the District Court for the
District of New Jersey only further complicated this area of law by
interchangeably using the terms passive participation and deference and
respect without articulating clear guidelines.146 The court held that
coaches can passively participate in team prayers by exhibiting the exact
external manifestations as the players prayingbut that they may not pray
or otherwise actively participate.147 This is an extremely tenuous distinction
in an area of law that was already in need of bright-lines.148 Further
evidencing the ambiguity of the district courts holding was the way it was
misinterpreted by the media and numerous religious groups.149 Even the
headlines of reputable newspapers were misleadingif not flatly
inaccuratereporting that a coach had won his fight to take part in team
prayers.150

B. The Need for Supreme Court Review

Borden repeatedly stressed to the court that the School District did not
have the right to be thought-police or delve into his personal thoughts,
but the courts holding established a standard that forces the reasonable
observer to do just that.151 By holding that Borden can exhibit external
manifestations of prayer while surrounded by others who are praying, the
reasonable observer is forced to wonder if the coach is praying.152 In

145. See supra note 142 and accompanying text.

146. See Transcript of Proceedings, supra note 3, at 43-45.
147. Id.
148. See id.
149. See Greg Tufaro, Team Prayer Appealed, HOME NEWS AND TRIBUNE, Aug. 24, 2006
(This decision, even though it was delivered from the bench, has already spawned some
confusion. There are religious right leadership groups running around the country telling
high school football coaches they can pray with their teams and the federal appellate court
needs to clear that up.) (quoting the assistant director of communications for Americans
United for Separation of Church and State).
150. See, e.g., Bill Finley, Coach Is Allowed to Pray with Team, N.Y. TIMES, July 27,
2006, at D1, available at 2006 WLNR 12933428.
151. See Transcript of Proceedings, supra note 3, at 24 (The day we start regulating
what people think in this country, all of our rights are gone.).
152. See id. at 33-35.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 383

reaching its decision, the court seemed to give great deference to Bordens
assertions that he would no longer pray.153 While all indications are that
Borden is an extremely honorable man,154 one can certainly imagine that
there are other coaches across the country who are not so honorable, and
this holding effectively permits these coaches to participate in team prayers
as long as they claim that they are not.155
This Comment asserts that the School Districts articulation of the law
was accurate and the appellate court should reverse the district courts
ruling and find in favor of the School District.156 While a coach does not
have to leave the room or express his or her disapproval of the prayers,
taking a knee with players too easily connotes endorsement of religion just
as the Duncanville court determined that joining hands did.157 These actions
are both overt manifestations of participation and drawing the distinction
merely at whether hands are joined seems arbitrary and illogical.158 This
Comment further asserts that regardless of the decision of the appellate
court, the Supreme Court should grant certiorari and directly review this
matter to provide clear guidance to public school employees across the
country before similar conflicts begin to arise in other jurisdictions.159

C. A Suggested Standard
Due to the importance of the separation of church and state, the
tremendous impact coaches have on their players and the presence of
intense peer pressure, the Supreme Court must articulate a bright-line
standard for public school coaches to follow.160 Considering the immense
influence coaches have on their players, the standard by which their
conduct should be judged must be stronger than that of other teachers or
other administratorsnot weaker.161 This Comment asserts that the

153. See id. at 39.

154. Defendants Brief, supra note 7, at 4; see also supra note 1.
155. See supra note 142.
156. See Transcript of Proceedings, supra note 3, at 35-36. The School District is
currently appealing the district courts ruling. Sue Epstein, Appeals Court Hears Arguments
on Issue of Pre-game Prayers, STAR LEDGER, Oct. 4, 2007, at 43, available at 2007 WLNR
19442431. Early reports indicate that the federal court of appeals is struggling to reach a
decision, further evidencing the need for Supreme Court review and a clear articulation of
the law. See id. (This is a confused, difficult area of law.) (quoting Judge Mary Ann
Trump-Barry) (This looks like a mess to me.) (quoting Judge Theodore McKee).
157. See Doe v. Duncanville, 70 F.3d 402, 406 n.4 (5th Cir. 1995).
158. See supra Part II.C.
159. See infra Part IV.C.
160. See supra Part I.A.
161. See supra Part I.A.
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384 NEW ENGLAND LAW REVIEW [Vol. 42:363

Supreme Court should clarify the law in this area by adopting the Purpose
of Congregation Test.162
Under this bright-line standard, the Establishment Clause is violated if
a coach congregates or comes together with his or her teameither by
taking a knee or physically joining with them in any other waywhile
players are engaged in prayer. The threshold question the coach must ask
is: What is the purpose of this congregation? If the team comes together
and takes a knee for a secular purpose, such as discussion of team strategy,
the coach may join them without any concerns. If however the purpose of
the congregation is to pray, the coach may not be physically joined with his
or her players at this time. Furthermore, if the coach is joined with his or
her team for a secular purpose, and the team then decides to engage in
prayer, the coach must extricate himself or herself from the group at this
time.163 The coach does not have to leave the room or turn his or her back
to the conduct, but he or she may not be physically joined with the team
when they engage in prayer.164 The coach may stand to the side and even
bow his or her head out of respect, but there must be some element of
physical separation between the coach and his or her team to make it clear
that the coach is not participating in the religious congregation. The only
exception to the rule would be that Borden, or any other coach, would not
be able to take a knee during the locker-room prayer, even if physically
removed from the group because kneeling in this context can too easily be
misinterpreted as a manifestation of prayer. Although Borden cited several
alternative reasons for kneeling in various contexts, kneeling in a room full
of others who are kneeling to pray is too susceptible to misinterpretation by
young student-athletesor anyone else for that matter.165
Under the facts of this case, Borden would be permitted to bow his
head out of respect during both prayers but would have to remain standing
to the side of the congregation during the locker-room prayer.166 This
standard balances a coachs right to freedom of expression but also ensures
that the employees conduct cannot be confused as an impermissible
endorsement or participation. This Comment asserts that the Establishment
Clause is not violated by Borden bowing his head during the dinner prayer
because he is physically removed from the players and is no different than
any other member of the dinner at this time.167 Borden, however, would no

162. See supra and infra Part IV.C.

163. See supra Part I.C.2.
164. See supra Part II.D.
165. See Transcript of Proceedings, supra note 3, at 19-20, 43.
166. See supra Part I.C.
167. See supra note 45 and accompanying text.
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2008] BORDEN V. EAST BRUNSWICK SCHOOL DISTRICT 385

longer be permitted to lead the first dinner prayer of the season under this
standardnor should he have been able to do so under any other
standard.168 Borden would also no longer be permitted to initiate the dinner
prayer under this standard, and this Comment asserts that the coach
violated the First Amendment when he did so in the past.169

CONCLUSION
One can certainly appreciate and respect Bordens desire to instill
proper values in his players, but this does not give the coach the right to
violate the Constitution.170 The School District made it clear that it only
issued the Directives to avoid potential litigation and did not have any
personal vengeance or problem with Borden or his conduct.171 Likewise,
the overwhelming majority of individuals, including Bordens players both
past and present, did not seem to have a problem with any of Bordens
actions.172 Still, coaches must be conscious of the fact that theyve got a
diverse group of people that they are leading.173 A coach, or any other
teacher for that matter, must recognize that he or she cannot always
impart their values on others and must be respectful of what other
peoples backgrounds and cultures are.174 It is important to keep in mind
that it is often the individuals who are offended that may feel pressured to
keep their concerns silenced.175
Even though Borden believes that he is teaching his players the
right things about life, he and other coaches across the country must
acknowledge that the law is the law and the obvious fact that there are
many different conceptions of the right things.176 The Supreme Court

168. See supra Part I.C.

169. See supra Part I.C.
170. See supra Part I.B.
171. See Defendants Brief, supra note 7, at 4.
172. See, e.g., Campbell, supra note 38 (So a little head-bowing, a moment of silence, a
reminder from the announcer that its just a game strike[s] me as comforting, not
constitutional tinder.); Grossfeld, supra note 9 (It was one of the dumbest things people
could ever complain about. I dont believe in any religion, so if anybody should be
offended, it should be [me]. . . . As far as Im concerned, he wasnt pushing his religion. . .
. [A]nd I think the school board was wrong.) (quoting two of Bordens former players)
(first alteration in original).
173. Grossfeld, supra note 9 (quoting Peter Roby, Director of the Center for the Study of
Sport in Society, Northeastern University).
174. See id. (quoting Peter Roby, Director of the Center for the Study of Sport in Society,
Northeastern University).
175. See supra note 3.
176. See Grossfeld, supra note 9 (quoting Borden); Grossfeld, supra 28 (quoting the
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386 NEW ENGLAND LAW REVIEW [Vol. 42:363

must address this refined issue of law to provide unambiguous guidance

to other coaches across the country before they use the district courts
holding to get around the mandates of the First Amendment.177 Adopting
the Purpose of Congregation Test will ensure that the wall of separation
between church and stateand a coach and his praying playerswill stand
high and strong.178

president of the Massachusetts High School Football Coaches Association).

177. See supra notes 20-21 and accompanying text; see also supra notes 32-33 and
accompanying text.
178. See Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) (quoting Reynolds v. United
States, 98 U.S. 145, 164 (1878)).