Borden v. School District of the Township of East Brunswick

McKEE, Circuit Judge, concurring.

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

However, I do not join my colleagues’ suggestion that we might reach a different result here absent Borden’s 23-year history of promoting team prayer. That question is not before us, and I believe that Borden’s “respectful display,” see Con. Op., infra, at 187 (Barry, J., concurring), might well violate the Establishment Clause even absent his 23-year history. Similarly, I can not agree that the football team’s pregame ritual can accurately be characterized as “student-initiated” prayer.

I.

In reaching our holding, the lead opinion suggests: “[I]f a football coach, who had never engaged in prayer with his team, were to bow his head and take a knee while his team engaged in a moment of reflection or prayer, we would likely reach a different conclusion.... ” Supra, at 178; see also Con. Op., infra, at 187 (Barry, J., concurring). I am not as sure. Although *180I agree that would be a more difficult case, it is not clear to me that our Establishment Clause inquiry would yield a different result. “[E]very Establishment Clause challenge requires a fact-specific, case-by-case analysis.” Modrovich v. Allegheny County, 385 F.3d 397, 402 (3d Cir.2004). As discussed in the lead opinion, our Establishment Clause inquiry here turns on whether an objective observer would interpret Borden’s proposed actions as a state endorsement of religion. Supra, at 173. I believe such an observer could interpret Borden’s proposed actions as an endorsement of religion even absent the coach’s history of promoting team prayer.

Coach Borden’s suit against the School District did not seek a declaration “permitting him to pray with his players,” Borden’s Br. at 9, but rather “a declaration that he be allowed ... to continue to demonstrate respect for his players by silently bowing his head and taking a knee during The Team Prayers.” Compl. ¶ 18. However, as Judge Fisher’s lead opinion explains, it is not Coach Borden’s subjective intent that controls whether his conduct runs afoul of the Establishment Clause. Rather, the question at the heart of the endorsement test, is whether an objective observer would perceive that Borden, and by extension the School District and therefore the state, is advancing or promoting religious practice. Here, if Coach Borden silently bows his head and takes a knee as he requests, even without knowledge of Borden’s 23-year history of involvement with pregame prayer, any such observer who peered into East Brunswick’s locker room before a game would probably observe something very much like the following: 27

*181[[Image here]]

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

II.

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

*182The district court accepted the argument that the prayer that occurred after October 7, 2005, was “student-initiated.” (JA 37). It clearly was not. I have no doubt that Coach Borden is a sincere and remarkably dedicated individual who cares deeply for his players. He is also a very successful coach. Unfortunately, in an apparent desire to do what he thought was best for his players, he lost sight of his role as a teacher in a public school.

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

I am not suggesting that Coach Borden intentionally pressured his players into voting for pregame prayer ceremonies or that he wanted to manipulate the outcome. Nevertheless, these players were put in the untenable position of either compromising any opposing beliefs they may have had or going on record (at the very least with their captains) as opposing their coach and perhaps a majority of their teammates.

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

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

Attendance [at graduation] may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “volun*183tary,” for absence would require forfeiture of those intangible benefits which would have motivated the student through youth and all her high school years.

Lee, 505 U.S. at 595, 112 S.Ct. 2649. Participation in high school athletics is no less important than attending one’s high school graduation. Indeed, the ongoing involvement with high school athletics is undoubtedly far more important to some than a one-time graduation ceremony. High school sports have long been a central part of our communities and they shape the character of many teenagers far more than a single graduation ceremony.

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

For, “the government may no more use social pressure to enforce orthodoxy than it may use more direct means.” ... “[W]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.” ... The constitutional command will not permit the District “to exact religious conformity from a student as the price” of joining [his] classmates at a varsity football game.

Santa Fe, 530 U.S. at 312, 120 S.Ct. 2266 (quoting Lee, 505 U.S. at 592, 594, 112 S.Ct. 2649).

Indeed, “it is quite possible that parents of some [students] chose public education precisely so that their children would not be compelled to follow the religious beliefs of others.” ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471, 1482 (3d Cir.1996)(eii banc). That likelihood is particularly strong here given the telephone call of at least one “overwrought” parent that Superintendent Magistro received in reaction to pregame prayers before the School District enacted the policy that is challenged here.

This does not, of course, mean that students have no right to pray; they clearly do. Whatever else it may be, prayer is a form of speech and deserves no less protection than secular speech. Engel v. Vitale, 370 U.S. 421, 424-25, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).30 The policy the School District developed in response to the complaints about pregame prayers was an effort to protect the First Amendment liberties of everyone in the school community.

III.

The Supreme Court has observed that “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952). Yet, the Court also reminds us that “[i]t is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of [religion] ... and leave ... purely religious function^] to the people themselves and to those the people choose to look to for religious guidance.” Engel, 370 U.S. at 435, 82 S.Ct. 1261.

*184Coach Borden’s dedication to instilling in his players values such as respect and team unity is certainly praiseworthy. However, as we have explained, the laudable intentions of state actors do not control an analysis under the First Amendment. “For just as religion throughout history has provided spiritual comfort, guidance, and inspiration to many, it can also serve powerfully to divide societies and to exclude those whose beliefs are not in accord with particular religions or sects that have from time to time achieved dominance.” Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 382, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985). This record contains powerful evidence of such division.

Superintendent Magistro testified that she received telephone calls in September 2005 from some parents of cheerleaders. They complained that their daughters were “uncomfortable” when Borden initiated a prayer at a pregame dinner. (JA 153-56). Students apparently learned of these complaints, and blamed two Jewish cheerleaders. Thereafter, those cheerleaders were publicly ridiculed by other students at athletic events, and the cheer-leading squad was taunted, bullied, and booed. (JA 452 at ¶ 5). The cheerleaders were even harassed and threatened on a student internet “blog.” In the days following Coach Borden’s resignation, several internet posts appeared under the heading, “Jewish Cheerleaders who suck!!!.” The following are a few examples of the disgusting comments that were posted:

• “First they crucify Jesus, then they got Borden fired.... Jews gotta learn to stop ruining everything cool.” (JA 460)
• “The jew is wrong. Borden is right. Let us pray.” (JA 467)
• “d* *n jews ... then you wonder why hitler did what he did back in the day.” (JA 471)
• “MAYBE if [Borden] held a gun to the jjjjewwws head and was like b*tch get on ur knees and pray to jesús!! then that might be breaking the law ... ehhh maybe not! ... just suck it up if u don’t fu*king like whats going on in america then GO THE FU*K BACK TO YOUR COUNTRY AND STAY THERE AND PRAY....” (JA 487-88)
• “Heil Hitla! ! ! sieg heill.” (JA 490)31

*185These exchanges illustrate the continuing relevance of Justice O’Connor’s admonition that “[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). The School District attempted to address these concerns by adopting the policy that the district court struck down in the face of Coach Borden’s challenge. In reversing the district court, we help to ensure the continued vitality of the Establishment Clause as well as the rights of all to worship as they please.

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

. In fairness, it is important to note that when asked at oral argument, counsel for Coach Borden was not able to confirm that this picture, submitted in the School District’s Reply Brief, accurately depicts the pregame prayers after the district court’s grant of summary judgment. The photograph was not entered into evidence in the district court. However, it is not disputed that the coach in the picture is Coach Borden, and counsel for Borden did not claim that the picture is inaccurate. Regardless of when it was taken, it certainly appears to be what an objective observer would see if he/she were to observe the coach "silently bowing his head and taking a knee.” Compl. ¶ 18. In his brief to this court, Borden states that after the district court invalidated the School District's policy, he "silently bowed his head and took a knee with his players while his players prayed before every game during the 2006 season.” Borden’s Br. at 3. (This photograph was downloaded from the Boston Globe web site, and is available at http://www.boston.com/ sports/schools/gallery/ 11_.07_06_grossfeld prayer/) (last viewed March 12, 2008).

. The Supreme Court has applied the "coercion” test as well as the “endorsement” test in determining whether state action violates the Establishment Clause in the public school context. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (applying endorsement test and coercion test); Lee v. Weisman, 505 U.S. 577, 592, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (observing that “there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools” because "prayer exercises in public schools carry a particular risk of indirect coercion”); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985) ("The symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice.”).

. Moreover, the Supreme Court has held on more than one occasion that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), quoted in Santa Fe, 530 U.S. at 304-5, 120 S.Ct. 2266. “The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.” Santa Fe, 530 U.S. at 304-05, 120 S.Ct. 2266 (citation omitted).

. Such prayer does not, however, have to occur in the locker room. *185Id. at 294 n. 1, 120 S.Ct. 2266 (alteration in original). The district court had to threaten contempt sanctions and criminal liability to protect the parents and students who objected to the practice of prayer at football games. Id.

. Borden’s counsel, in his brief and at oral argument, urged us to disregard evidence of parents' calls to the Superintendent and harassment of the cheerleaders:

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

Borden’s Br. at 16-17. However, given the nature of these venomous comments, counsel can not seriously suggest that the evidence be ignored merely because students and parents who opposed Coach Borden’s policy were not willing to identify themselves and offer direct testimony. The situation is neither new nor unique. In Santa Fe Independent School District v. Doe, the Court noted that the district court permitted students and parents to litigate anonymously. 530 U.S. at 294, 120 S.Ct. 2266. The opprobrium that can await those who publicly state their opposition to prayer in school is evident from the Court’s opinion in Santa Fe:

About a month after the complaint was filed, the District Court entered an order that provided in part: ”[A]ny further attempt on the part of District or school administration, ... teachers, employees or servants of the School District, parents, students or anyone else, ... to ferret out the identities of the Plaintiffs in this cause, by means of bogus petitions, questionnaires, individual interrogation, or downright 'snooping', will cease immediately.”