Borden v. Sch. Dist.

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In Borden v. Sch. Dist., 2008 U.S. App. LEXIS 8011 (3d Cir. Apr. 15, 2008), the Court of Appeals for the Third Circuit held that a football coach may not bow his head and bend a knee ("take a knee") during a player-initiated prayer in the locker room. The Court upheld a policy of the East Brunswick, New Jersey as follows:[1]

The School District has a legitimate educational interest in avoiding Establishment Clause violations, and the guidelines are reasonably related to that interest. The Supreme Court has stated that "compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech." Pinette, 515 U.S. at 761-62; see also Locke v. Davey, 540 U.S. 712, 730 n.2, 124 S. Ct. 1307, 158 L. Ed. 2d 1 (2004) (Scalia, J., dissenting) ("[A] State has a compelling interest in not committing actual Establishment Clause violations."). If compliance with the Establishment Clause can rise to a compelling state interest, surely it is a legitimate educational interest. Moreover, the guidelines are related to that interest because, as discussed in the overbreadth and vagueness analysis, the prohibited conduct would violate the Establishment Clause. In fact, based on the history and context of Borden's conduct in coaching the EBHS football team over the past twenty-three years, Borden is in violation of the Establishment Clause when he bows his head and takes a knee while his team prays.

Judge D. Michael Fisher wrote the decision, attempting to confine his ruling to situations where the coach had a long history of leading the players in prayer. However, Judge Theodore McKee concurred and emphasized that he did not view the ruling to be limited to whether the coach had historically supported prayer.

Judge Maryanne Trump Barry concurred separately with an opinion suggesting that bowing a head and taking a knee can be signs of respect without any endorsement of religion, and praised Judge Fisher's lead opinion while not joining it.


  1. 2008 U.S. App. LEXIS 8011, at *49 (emphasis added).