Borden seeks rehearing in federal appeals court Attorney says April ruling unfairly creates 'two classes of coaches' BY BRIAN DONAHUE Staff Writer EAST BRUNSWICK - The attorney for high school football coach Marcus Borden is asking an appeals court to rehear the case, saying its opinion is flawed. Ronald J. Riccio filed a petition to request a rehearing by the full U.S. Third Circuit Court ofAppeals, as he seeks to overturn the unanimous decision by a three-judge panel of the court against Borden. TheApril 15 ruling upheld a school district policy that prohibits the longtime coach from participating in team prayers with gestures such as bowing his head or taking a knee. Riccio said the judges'opinions, listed in a 70-page decision, were inconsistent with each other and with past rulings by their court and the U.S. Supreme Court. He also took issue with the judges' statements that only Borden, because of his prior history of leading teamprayers before East Brunswick High School football games, cannot participate in ways that other coaches can. "The way the case reads now, the only person who can't show respect for team prayer by bowing the head or taking a knee isMarcus Borden," Riccio said. "Every other coach, every teacher for that matter, who comes in contact with students who want to pray, andwho have no prior history of prayer with those students, can show respect by bowing their head or taking a knee. It creates a problembecause it creates two classes of coaches, those who have a history and those who don't." As an example, Riccio said a coach such as Borden would not be able to take a knee with his teamas a sign of respect if his players decided to pray before a game, but his three assistance coaches would, as long as they do not have the same history. "Are the assistant coaches allowed to bow a head and take a knee, but the head coach isn't? It's notworkable,"Riccio said of the ruling. Riccio is asking that the full court, consisting of more than a dozen judges, decide whether to rehear the case based onwhat he described as a "fractured" legal decision. He acknowledged that it is "very rare" for the court to agree to a rehearing. If denied, Riccio said he said he will then ask theU.S. Supreme Court to take the case. The legal issues surrounding Borden's participation in team prayer have received widespread media attention since fall 2005, when he sued the school district for prohibiting himfromparticipating in the longstanding tradition of teamprayer. Borden said the school district violated his rights by not allowing him to silently take part in studentinitiated prayer. In July 2006, the U.S. District Court ruled that the school district could not prohibit him from silently bowing his head or taking a knee, described as signs of respect, while players pray. The East Brunswick Board of Education appealed that decision, andwas successful in having it reversed lastmonth. The ThirdCircuit Court ofAppeals, in Philadelphia, found that Borden's silent participation in the prayers violated federal laws, given his prior history of organizing and at times leading the prayers himself. The judges said an objective observer ofBorden's gestureswith the team would conclude that he was endorsing a religious activity. Thoughthe judges ruledunanimously,Riccio contends that some of the conclusionswere contrary to legal precedent regarding schoolteachers' rights to due process and free speech. "It's a little unusual.You've got a 70-page opinion that has each judge writing their own opinion. There's a lot in there, and none of the three really agree with each other on everything. So it raises questions, and I just thought that the whole court should decide, before we ask the Supreme Court to hear it, if theywant to address it as a full court," Riccio said. The school district was represented, pro bono, in the appeal by the watchdog group Americans United for Separation of Church and State, which applauded the recent ruling as protecting public schools' responsibility to protect students from religious coercion. East Brunswick Superintendent of Schools Jo Ann a, who in 2005 intervened with Borden's team prayers based on the complaints of parents, has said that the appeals court decision accomplished the district's goal of protecting "children who could not protest pressure to participate in religious activities at school events." She noted that students will continue to be allowed to voluntarily pray when and where they wish, but that district employees cannot participate in those religious activities.