Borden case is over, but it should never have begun
Coda • GREG BEAN
Well, the Marcus Borden school prayer saga is finally over (at least in the courts), bringing to an end one of the saddest chapters in New Jersey education.

I've had mixed feelings about this business from the start. I understood the stance taken by the East Brunswick school district, which had to try to restrict Borden's role in prayer before games. If school officials did nothing, they'd open themselves to potentially devastating legal action from parents and students who felt they were being coerced to pray. They also had a duty to taxpayers in the district to limit the costs of Borden's litigation. They certainly didn't want to be in a position where they'd have to pay Borden's attorney, Ronald J. Riccio.

I also understood where Borden was coming from. To him, it seemed as if the district was restricting his right to take a knee during student-led prayers and pray silently, which is a right most Americans hold dear, and many have died for. He has also said throughout the process that he hoped the courts would provide some clarification to other educators and coaches, that they would set out some parameters for what is acceptable and what is not.

At first, it looked as if Borden might be successful in his efforts. In 2006, the U.S. District Court sided with him and ruled that the school district could not stop him from taking a knee or bowing his head during student led prayers. The school district — which suddenly realized it might be responsible for paying Borden's legal bills — appealed that decision. The appeal was successful, and in May 2008 the 3rd Circuit Court of Appeals in Philadelphia ruled that Borden's participation violated federal laws, because of his history of organizing and sometimes leading the prayers himself. An objective observer, the court said, would conclude that he was endorsing religious activity.

While the ruling was a victory for the school district, it was an imperfect ruling that raised more questions than it answered. When I last wrote about this issue in 2008, I noted that this decision specifically prohibited only Borden, not coaches in other places, from taking a knee. "In other words," I wrote then, "the judges said, 'We're not gonna make a broad ruling about pregame, student-led prayers in schools, but we're gonna prohibit this one guy in East Brunswick from taking any part in it.'And if a student athlete initiates a pregame prayer while Borden is in the room, the judges had no advice on how he should react. Should he leave the room? Well, maybe not, the judges said, since that might indicate a 'hostility to religion that no one would intend.' Should he stare at the wall? Should he start doing math sums in his head so he doesn't hear the prayer? The judges simply didn't provide any opinion or advice."

Riccio said he would appeal the ruling to the U.S. Supreme Court. At that time, I wrote that I believed that tactic would fail. Here's what I said: "In my opinion, the chances of the case being heard by the U.S. Supreme Court are slim. They have thousands of requests to hear cases every year, and they only hear about 100, each of them at their discretion. It's improbable they'll hear a case that three judges in federal appeals court agreed upon — which will leave a wound in the East Brunswick community that will never be completely healed or resolved."

It turns out I was right, although I take no pleasure in that. At the first of the month, the U.S. Supreme Court declined to hear the case, and because of that, it is over.

I spoke to Riccio last week, and he told me the same thing he said to other reporters. He and Borden are disappointed that the court declined the case, because it had the opportunity to clarify the law for other educators and coaches around the country. Riccio said the court conferenced the case twice before declining, which he believes indicates there was some debate over the merits of the matter. All that leaves Borden with, he said, was that he succeeded, in the 3rd Circuit Court of Appeals, "in establishing the principle that was the basis of his lawsuit, but because of his prior history, he cannot enjoy the fruits of that victory regarding principle."

So here's what four years of contention over this issue have reaped. The school district reined Marcus Borden in, but in a legal sense, the issue is as muddy as ever.

There was a fine story in Greater Media's publication the Sentinel about this matter, and in that story a spokesman for Americans United for Church and State, which represented the school board in court, praised the U.S. Supreme Court's decision to ignore the case. "A coach's job is to teach kids how to play a sport, not promote a religion,' the Rev. Barry W. Lynn, executive director of the organization, told the Sentinel. "The case is a reminder that parents, not school personnel, are the rightful decision-makers when it comes to children's religious upbringing."

But I don't understand how Lynn came to that conclusion. The high court did not affirm or elucidate anything, and in the absence of that elucidation, all we have is the 3rd Circuit Court's 70-page decision, which is frankly a mess. That decision is so ambiguous it does not move the ball down the field a single yard. And Borden, for his part, has virtually nothing.

The only good thing to come out of the whole morass is that the taxpayers of East Brunswick won't wind up footing the coach's legal bills. But it's still sad. It has divided East Brunswick and put it in the national spotlight — and not in a good way, either. It's particularly vexing because I've always believed it shouldn't have ever come to this. I've said all along that reasonable people should have been able to work this problem out without dragging it into court.

Unfortunately for my home community, reasonable people were missing in action — and we've had four years of contentious strife as a consequence.

Gregory Bean is the former executive editor of Greater Media Newspapers. You can reach him at gbean@gmnews.com.