Borden v. School District of the Township of East Brunswick

BARRY, Circuit Judge, concurring.

There was no question, and the parties clearly understood, that there was one predominant issue before the District Court: whether the actions in which Borden wished to engage would violate the Establishment Clause of the First Amendment, not whether the conduct in which he had engaged would pass constitutional muster. Put in specific terms, the parties and the District Court focused their attention on how this public high school football coach could react, consistent with the Establishment Clause, when members of his team decide to initiate voluntary prayers at a pre-game meal attended only by players, staff, players’ parents, and invited guests, and in the locker room before a game where only players and coaches are present.

Borden, for his part, represented that, whatever had gone before, he would no longer pray with the team, move his lips, join his hands with the players, or even close his eyes. Rather, the two silent actions in which he wished to engage — bowing his head and taking a knee when the team decides to pray — are to show his “personal respect” for his players and “respect for what this game entails and what they do to go out there and play and give it their all.” The defendants had no problem with that. As Superintendent Magis-tro put it, “if the courts determine that [Borden] taking a knee, bowing his head, is appropriate, that’s fine. He can do that. I think that’s what this is all about.” Again, “[i]f the courts come down and say Borden can bow his head, bend his knee, jump on the table, I am going to allow it.” The defendants’ briefs before the District Court on the cross-motions for summary judgment continued that theme. One put it this way: “If this Court were to find plaintiffs actions do not implicate the Establishment Clause, then regardless of what Constitutional right plaintiff seeks relief under ... he would be entitled to participate in voluntary, non-disruptive student prayers.”

Suffice it to say that when they were before the District Court, the parties were in good faith trying to avoid an Establishment Clause problem, with defendants explicitly agreeing to abide by the District Court’s decision. But defendants did not do so. Rather, now armed with new counsel, they filed an appeal, creating before us a legal landscape that bears little or no resemblance to what went on before the District Court and surely causing the temperature of this litigation to soar.

Given my druthers, I would hold defendants to their word and would not entertain, as my distinguished colleagues have so generously entertained, the new issues and arguments raised on this appeal.³² I will not, however, tarry to push the proverbial waiver rock uphill as to all of those issues and arguments because I cannot disagree, nor does Judge McKee, with the bottom-line conclusions of Judge Fisher’s superb lead opinion that “the guidelines and the Board’s statement were not unconstitutional on their face, were not unconstitutional as applied to Borden, and in fact, were necessary for the School District in order to avoid Establishment Clause violations.” These conclusions are “threshold question[s] necessary to a proper analysis of the parties’ [Establishment Clause] arguments,” before us and so, even if not adequately raised before the District Court, it is appropriate that we consider them. See Tenafly Eruv Ass’n Inc. v. Borough of Tenafly, 309 F.3d 144, 158 n. 15 (3d Cir.2002).

I write separately, however, to express my view that whether or not Borden’s past prayer activities with the team signaled an unconstitutional endorsement of religion— and I have little doubt that they did — a reasonable observer would not conclude that the “respectful display” he proposes would violate the Establishment Clause. The lead opinion concludes, in its additional, albeit unnecessary, “holdfing],” that that display would “cross the line.” It does so, however, as does Judge McKee’s concurring opinion, by having the reasonable observer look only at Borden’s twenty-three years of history with the team’s prayers and the context of the display he proposes.³³ Yet a reasonable observer would not only have knowledge of that history, but would know of all that has taken place leading up to and during this litigation and know that Borden, under oath, has represented what he will and will not do and that he merely wishes to show respect for his players when they pray. A reasonable observer would have no reason to believe that Borden was lying.

Moreover, given the limited number of attendees at the pre-game meal, it is fair to say that a reasonable observer of a prayer before that event would be a player, coach, parent, or invited guest, and a reasonable observer when the team takes a knee for a pre-game prayer in the locker room would be a player or a coach, just as in Santa Fe the observer was “an objective Santa Fe High School student.” Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). Thus, if and when in the future a player decides to initiate prayer, the reasonable observer would know, given Borden’s representations, that he did not ask for a prayer; did not select someone to say a prayer; did not monitor the content of the prayer; did not provide a means for broadcasting the prayer; did not join his hands with anyone; and did not mouth the words of the prayer, or say it aloud, or otherwise do anything to put the imprint of the state on the prayer. A reasonable observer would simply see Borden bow his head or take a knee in a silent, unobtrusive sign of respect for the private choices made by individual players who are constitutionally permitted to choose to engage m religious activities. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 649-55, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002); Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 251-52, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990); Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 531 (3d Cir.2004).

My colleagues and I do not disagree that bowing one’s head and taking a knee can be signs of respect; indeed, Judge Fisher “would likely” find, as would I, no endorsement of religion were a football coach, who had never engaged in prayer with his team, to bow his head or take a knee while his team engaged in a moment of reflection or prayer. Apparently, it is only Borden, given his prior history, who cannot constitutionally respond to constitutionally protected student-initiated and student-composed prayer but, if he can, we are not told what response might be permissible. Surely he would not be required to keep his head erect or turn his back or stand and walk away.³⁴ Any such requirement would evidence a hostility to religion that no one would intend.

This is a difficult and close case, complicated by the fact that, unlike the vast majority of Establishment Clause cases which are brought by plaintiffs complaining of a state’s actions, this case was brought by an employee of a state complaining about pre-emptive action taken by the state in its attempt to avoid an Establishment Clause problem. With this litigation hopefully nearing its end, one also hopes that those involved will move forward as a team for the benefit of the young people who look to them for guidance and support.

32 . I would find, for example, that defendants have waived the argument that numerous pedagogical reasons justified the directives and not just fear of litigation and the argument that Borden has no constitutional rights which would limit defendants' exercise of their discretion.

33 . Judge McKee has included in his concurring opinion a picture of unknown date that is not in evidence in this case and thus, in my view, not appropriately considered by us. Having lost that battle, I agree with Judge Fisher's assessment of the picture and what more would be needed before a reasonable observer could reach the conclusion that Borden was, in fact, praying, a conclusion reached by Judge McKee based on the picture alone. See Lead Op. at n. 25.

34 . One wonders how a court can dictate, beyond a certain point, what response is permissible, much less how a response would be enforced. Defendants told the District Court that Borden can bow his head, but he cannot do "a pronounced bowing of the head.” What is "pronounced,” and who would decide that question? As defendants also told the District Court, "The district does not have thought police, and we certainly don't have bow police.”