## Facts

- Marcus A. Borden served for roughly 23 years as head football coach at a public high school and “organized, participated in, and even led” team prayer activities associated with the football program.
- Parents complained about religious activities connected to the team.
- The school district adopted a written policy barring school employees, in their official capacities, from “initiating, leading, or participating in a prayer or other religious activity with students,” aiming to prevent Establishment Clause violations.
- Borden asserted he should still be allowed to (1) bow his head silently during players’ pre-meal grace and (2) take a knee during players’ locker-room prayers, characterizing these as respectful, non-leading gestures.
- Borden sued seeking declaratory relief, arguing the policy was overbroad and vague and violated his federal and state rights to free speech, academic freedom, freedom of association, and due process; he also sought a ruling that his silent acts would not violate the Establishment Clause.
- The district court granted summary judgment for Borden, invalidated the policy on all asserted grounds, and held the silent acts would not violate the Establishment Clause.
- The school district, board of education, and superintendent appealed.

## Issues

1. Whether the school district policy prohibiting faculty participation in student prayer was unconstitutional on its face or as applied (including overbreadth and vagueness).
2. Whether a coach’s silent acts (bowing his head during grace and taking a knee during locker-room prayer) violated the Establishment Clause given his long history of leading team prayers.
3. Whether enforcing the policy violated the coach’s rights to free speech, academic freedom, freedom of association, or due process as a public employee.

## Decision

- The Third Circuit reversed the district court’s judgment for Borden.
- The court held the policy was constitutional on its face and as applied; it was neither overbroad nor impermissibly vague.
- The court held Borden’s silent, visible participation in prayer during team activities violated the Establishment Clause in context because a reasonable observer would perceive endorsement of religion by the school.
- The court held the policy did not impermissibly infringe Borden’s free speech, academic freedom, associational, or due process rights in his role as a public school employee.

## Legal Principles

- Public school employees may not engage in conduct during official school activities that a reasonable observer would view as governmental endorsement of religion.
- Establishment Clause analysis considers context, including an official’s history and the setting of the conduct, in assessing perceived endorsement.
- A school district may adopt prophylactic rules limiting staff participation in student prayer to avoid Establishment Clause violations, so long as the rules target official-capacity conduct and do not reach private religious expression outside official duties.
- Restrictions on a public employee’s conduct occurring within the scope of official duties, in nonpublic team settings, may be upheld where necessary for the school to comply with constitutional obligations.
- A policy regulating staff participation in student prayer is not unconstitutionally vague when it gives reasonable notice of prohibited official-capacity conduct and is tied to preventing Establishment Clause violations.

## Conclusion

The Third Circuit held that a public school district may bar staff participation in student prayer during team activities, and that a coach’s silent prayer gestures—given his long practice of leading team prayer—could be perceived as official endorsement of religion and therefore violated the Establishment Clause.


Borden v. Sch. Dist. of the Twp. of E. Brunswick, 523 F.3d 153 (3d Cir. 2008)