PHILADELPHIA, Penn., April 17, 2008 ( – The U.S. Court of Appeals for the Third Circuit has ruled that a football coach may not silently bow his head or “take a knee” with his team as gestures of respect during student-led prayers prior to a game. Attorneys for The Rutherford Institute are acting as co-counsel for Coach Marcus Borden, who plans to appeal the ruling.

“If this ruling is allowed to stand, it will mean that high school teachers across the United States will have no free speech or academic freedom rights at all,” said John W. Whitehead, president of The Rutherford Institute. “This undermines a time-honored tradition that has less to do with religion than it does athletic tradition. It’s a sad statement on our rights as Americans that schools are no longer bastions of freedom.”

  The case arose in October 2005 after officials at East Brunswick High School adopted a policy prohibiting representatives of the school district from participating in student-initiated prayer, which has been a regular part of the high school football team’s pre-game activities for over 25 years. However, school officials justified their actions by insisting that while student athletes have the constitutionally protected right to pray, that privilege does not extend to coaches, who are public employees and whose participation would violate the “separation of church and state.”

  In July 2006, U.S. District Judge Dennis Cavanaugh declared that the school district violated Borden’s constitutional rights to free speech, freedom of association and academic freedom when they prohibited him from silently bowing his head and “taking a knee” with his players while they engaged in student-initiated, student-led, nonsectarian pre-game prayers.

  The District Court also ruled that the school district would not be subject to liability under the Establishment Clause by virtue of Borden’s gestures of respect. However, in challenging the court’s decision, the school district, aided by Americans United for Separation of Church and State, is arguing that Borden has no constitutional rights of expression or academic freedom in connection with his duties as a teacher and coach.

  Rutherford Institute attorneys have rebutted the school district’s claims, insisting that the liberties secured by the U.S. Constitution guarantee Borden’s right to offer a simple, silent gesture of respect, whether he does so by silently bowing his head or taking a knee while his players say their pre-game prayer. In issuing its ruling, the Court of Appeals reversed the lower court judgment in favor of Borden, declaring that Borden’s expressive conduct is not protected by the First Amendment. It also ruled that “based on the history of Borden’s conduct with the team’s prayer, his acts cross the line and constitute an unconstitutional endorsement of religion.”