Blog from the Capital

From the decision (pdf) (citations and some parentheses omitted)

On whether the policy is too vague:

Borden claims that the use of the word “participate” renders the guidelines unconstitutionally vague. Standing alone, the word “participate” may be vague. However, “participate” cannot be read in isolation, but must be read in the context of the entire paragraph discussing the prohibition on faculty participation with student-initiated prayer. The paragraph prohibiting faculty participation elaborates on what it considered participation by quoting from the Fifth Circuit’s decision in Doe v. Duncanville Independent School District. Thus, the faculty, including Borden, knew that the prohibition on participating in prayer with students included joining hands in prayer or demonstrating some approval of or solidarity with students’ prayer. Such a description is “‘sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . consonant alike with ordinary notions of fair play and the settled rules of law.’” (p. 24)

On whether Freedom of Speech protects the coach's participation in prayer despite his status as a government employee fulfilling his duties:

Borden portrays the content of his conduct as secular gestures intended to promote solidarity, help form the team into a cohesive family unit, and show respect for the players’ prayers. The content of his message, however, is not a matter of public concern. Borden does not perform these silent acts as part of a broad social or policy statement of being able to take a knee or bow his head in public. Additionally, he is not shedding light on any matter with regard to EBHS’s operations that would be important to the public because his silent acts do not touch upon the way in which a government institution is discharging its responsibilities. Instead, Borden expressly argues that he wishes to engage in this speech out of concern for his team’s morale. However, he is not trying to bring public morale issues within the school’s administration, but is merely trying to bolster his team by demonstrating that “this team is a family,” which does not amount to a matter of public concern.

In the present case, the form and context of Borden’s silent acts only reinforce its non-public nature. Borden’s speech does not occur in any type of official proceeding, and even more importantly, Borden’s speech does not extend into any type of public forum.(p.32)

On whether restricting the coach's ability to teach character-building amounts to a violation of his academic freedom:

We have held that a teacher’s in-class conduct is not protected speech. The rationale for this holding is that the teacher is acting as the educational institution’s proxy during his or her in-class conduct, and the educational institution, not the individual teacher, has the final determination in how to teach the students.
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Based on this analysis, we have previously determined that a teacher’s inclass conduct includes choosing one’s own teaching methods, utilizing one’s own “classroom management technique,” and assigning grades to a student.

In the case before us, Borden concedes that the silent acts of bowing his head and taking a knee are tools that he uses to teach his players respect and good moral character. Thus, by his own admission, his coaching methods are pedagogic. As a result, he is acting as a proxy for the School District, and the School District may choose both how its students are taught and what its students are taught. Here, the School District adopted Pachman’s guidelines because it determined that Borden’s pedagogic methods were inappropriate. As evidenced by this continued litigation, the School District continues to find Borden’s pedagogic methods of teaching his players respect by engaging in his silent acts inappropriate.

While Borden certainly has the right to voice his disagreement with the School District’s policy, in accord with our past precedent, he does not have a right to act in contravention of the School District’s policy based upon a right to academic freedom.(p. 35-36)

On the role of the coach's prior history in determining his unconstitutional "endorsement of religion":

[T]he current controversy is built upon a significant history of pre-game prayers that involved Borden. Borden organized prayers for the pre-meal grace at the team dinner; he had a chaplain say a prayer and then selected seniors to say the prayer. But even more importantly, Borden led prayers himself – on at least three occasions for the pre-meal grace, and before each game for twenty-three years for the locker room prayer. Additionally, when EBHS officials asked Borden to discontinue this conduct, he initially resigned from his position as coach of the team rather than continue as coach without engaging in the prayer activities. This history of Borden’s prayers with the football team leads to a reasonable inference that his current requested conduct is meant “to preserve a popular ‘state-sponsored religious practice’” of praying with his team prior to games.

Borden has stated that his intention in taking a knee and bowing during prayer is to show signs of respect to his team, not endorse religion. Borden attempts to support this argument by pointing to language in Duncanville, which states that “neither the Establishment Clause nor the district court’s order prevent [school district] employees from treating students’ religious beliefs and practices with deference and respect; indeed, the constitution requires this. Nothing compels [school district] employees to make their non-participation vehemently obvious or to leave the room when students pray . . . .”

However, we find Borden’s argument to be unavailing. First, the inquiry is not whether Borden intends to endorse
religion, but whether a reasonable observer, with knowledge of the history and context of the display, would conclude that he is endorsing religion. Additionally, Borden fails to note that the Fifth Circuit does not permit any respectful display to pass muster in evaluating the constitutionality of the display. Instead, the Fifth Circuit, in the sentence immediately following the above quote, stated that, “if while acting in their official capacities, [school district] employees join hands in a prayer circle or otherwise manifest approval and solidarity with student religious exercises, they cross the line between respect for religion and endorsement of religion.” Thus, Borden’s reliance on Duncanville is only partially accurate because the respectful display is permissible only if it does not “cross the
line” and endorse religion.

We find that, based on the history of Borden’s conduct with the team’s prayers, his acts cross the line and constitute an unconstitutional endorsement of religion.
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Without Borden’s twenty-three years of organizing, participating in, and leading prayer with his team, this conclusion would not be so clear as it presently is. We agree with Borden that bowing one’s head and taking a knee can be signs of respect. Thus, if a football coach, who had never engaged in prayer with his team, were to bow his head and take a knee while his team engaged in a moment of reflection or prayer, we would likely reach a different conclusion because the same history and context of endorsing religion would not be present. (pp. 46-8, 50)

From the concurring opinion of Judge McKee, on the question of the role of the coach's history in determining an Establishment Clause violation:

As discussed in the lead opinion, our Establishment Clause inquiry here turns on whether an objective observer would interpret Borden’s proposed actions as a state endorsement of religion. I believe such an observer could interpret Borden’s proposed actions as an endorsement of religion even absent the coach’s history of promoting team prayer.
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Such a conclusion would certainly be buttressed by knowledge of Coach Borden’s history of involvement in team prayer, but the absence of that history would not necessarily yield a different result.(pp. 53, 55)

On whether the prayers in question were in fact "student-led":

The district court accepted the argument that the prayer that occurred after October 7, 2005, was “student-initiated.” It clearly was not. I have no doubt that Coach Borden is a sincere and remarkably dedicated individual who cares deeply for his players. He is also a very successful coach. Unfortunately, in an apparent desire to do what he thought was best for his players, he lost sight of his role as a teacher in a public school.
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I am not suggesting that Coach Borden intentionally pressured his players into voting for pregame prayer ceremonies or that he wanted to manipulate the outcome. Nevertheless, these players were put in the untenable position of either compromising any opposing beliefs they may have had or going on record (at the very least with their captains) as opposing their coach and perhaps a majority of their teammates.

Although the coach thought that the prayers would foster team unity, and even though the captains reported that all
players wanted to continue the tradition, the record suggests that the reality was quite different. (p. 56-8)

From the concurring opinion of Judge Barry, on whether the coach's history should play a role in determining an Establishment Clause violation:

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. . . . [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.
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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. Any such requirement would evidence a hostility to religion that no one would intend.(pp. 67-69)