Let me pose a scenario:
A group of high school athletes desires to pray before games. They take it upon themselves to gather those who desire to participate, bow their heads, close their eyes and pray together as a group. Their coach, being in the locker room with these athletes prior to the game, decides to silently join these students. He walks over near their prayer circle, bows his head and listens or perhaps prays with his students silently. The coach does not utter a word out loud. He simply bows his head in unity with his players. Sometimes, if his players had the posture, he would kneel on one knee along with them while they prayed.
Has that coach broken a law? Has he violated his students' constitutional right to separation of church and state? What do you think?
A federal appeals court in New Jersey seems to think he has. A lawsuit was brought against the coach by the East Brunswick Board of Education. And they won. The court ruled that the coach's decision to bow his head and get down on one knee endorsed religion, even though he never uttered a word out loud. He didn't push religion, he wasn't Bible thumping, and he wasn't leading the prayer or forcing students to be a part of it.
The court had the following to say about their ruling. "We find that based on the history of [the coach's] conduct with the team's players, his acts cross the line and constitute an unconstitutional endorsement of religion. Although [the coach] believes that he must continue to engage in these actions to demonstrate solidarity with his team ... we must consider whether a reasonable observer would perceive his actions as endorsing religion, not whether [the coach] intends to endorse religion."
Although the superintendent of the district was quick to point out that students themselves have the freedom to pray voluntarily whenever they like. Thanks for clearing that up.
Here is the part that really gets me. There was a three judge panel in this case. Two out of the three judges (which is the majority) had this to say, "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." Basically, do it once and that's okay; but bow that head twice and you'll be sued.
What about a moment of silence that often occurs at sporting events to honor an event or person(s)? What does a coach do if that happens more than once in a season? During those times some people bow their heads, some people pray, some stand silently. Since it's a moment of silence no one knows what each individual is thinking or why they've taken that posture. If his players happen to bow their heads and he does too, will he be sued?
Now I'm not a judge nor am I a lawyer. I certainly have my own interpretations of the Constitution which many would probably never hold up in court. I tried to view this lawsuit from the point of the players, the school board, the judges etc. I tried. But I still don't fully see the value in the suit. And mainly for one reason.
With all the negativity in this world; with all the stories of coaches berating and beating players; with all the stories of parents and coaches fist-fighting over games; with all the bullying, guns and other school violence that occurs. With all of that, the school board spends money for this kind of lawsuit? No student (that's been reported) has ever come forward and complained about the coach's abilities, practices or character over his 22+ career coaching this very team. Some parents complained about him bowing his head and joining his players when they kneel (which, by the way, is a huge football tradition whether or not the player is considered religious). They ought to be thankful that this coach has taught their kids about their sport, about character and about the freedom to be who they are (even if that means they want to pray together). We should all be so lucky that the worst thing our coach ever did was bow his head along with ours.
3 comments:
hi Dawn!
I read the actual court opinion, and it was a little more complicated than the media let on. It wasn't the school district that sued the coach...it was actually the coach that sued the school district, claiming that the school's policy of preventing faculty from participating in student-led prayer violated several of his constitutional rights. He won at the district court level, so the school district appealed to the Court of Appeal.
The court held that he couldn't silently participate in the prayers b/c they considered that an objective observer would think he was endorsing it. With just those facts that the media gave it seems ridiculous, but he was actually a lot more invovled with school prayer than that. For 23 years prior to the prayer that got him in trouble, he himself was leading prayer at every team dinner, and would occasionally pick a senior to lead the prayer. Then before every actual game he would have the students gather around and kneel and would pray for them. Several parents complained that it was making their sons feel uncomfortable, and he told the team that students who weren't comofortable could wait in the bathroom while everyone else prayed. Students complained to their parents that they were afraid if they didn't participate that the coach wouldn't let them play in the games. The school board finally got involved and told him he couldn't lead the prayers anymore, and he told them he wasn't leading prayers, but the school board found out from parents that he still was. The school board reprimanded him and gave him guidelines about how he couldn't initate the prayer, but students could still do it. He resigned from his coaching position, but later came back to it. He was unhappy about not being able to lead the prayer, but had the co-captains of the team ask everyone else if they were still interested in praying and the students said yes, so the students took the initiative to lead the prayers. It was after the game where the coach bowed his head and took a knee with the players that he filed the lawsuit.
In response to the coach's First Amendment Freedom of Speech claim, the appellate court held that his rights were not violated because his speech was not protected. (Freedom of Speech is not an absolute guarantee...there are certain types of speech that aren't protected at all.) Government employees speaking in their role as an employee aren't protected by the First Amendment if their speech is not on a matter of public concern, basically because its outside the scope of their employment. (complicated rationale for this First Amendment test for government employees..but i'll leave that out.) If the court determines that an employee is speaking on a matter of public concern, it engages in a balancing test and balances the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Basically when the court applied this 2-part test, the coach's First Amendment claim failed b/c his "speech" (even though he didn't utter words his bowing his head and kneeling is still legally considered non-verbal speech)was not on a matter of public concern and was just to boost the morale of the team, so the court never had to apply the 2nd part of the test.
The court also addressed several other constitutional issues. Most prominently, and the one you talked about, is the issue with the Establishment Clause ("Congress shall make no law respecting an establishment of religion"). The court applied the test for cases involving state participation in religious activity since the coach was a government employee. This test looks at whether a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion. In this case, the court said that because the coach had led the prayers himself for his 23 years as a coach prior to the incident in question, a reasonable observer would think that him bowing his head and kneeling with the prayers was his endorsement of a relion.
Basically, the media completely left out the background of the case and the fact that the coach had led prayers and had nominated students to lead the prayers for 23 years prior to the head-bowing thing...probably because the story is much more sensationalized if it sounds like a coach just got in trouble for bowing his head, and not for the years of leading the prayers and fighting with the school board over the issue.
As a (soon to be) lawyer, I can totally understand this case and the school board's policy to not allow faculty to participate in prayer. The school could get sued since their employees' speech in this regard isn't protected, so it's a huge liability for the school board. It's just tricky with how vague the Establishment Clause is written. I think it was intentionally designed to be vague because if it were any more specific it would be too restrictive of religion. The Establishment Clause was actually designed to protect people and promote religious freedom by preventing Congress from mandating a religion. Over the years its seemed to take on a sort of anti-religion feel, but in theory, its supposed to protect it.
As a Christian though, my feelings are a bit more torn. I think I'm actually for a separation of church and state...for the protection of BOTH the church and the state. Too many governments, in the confused name of religion, have done too many horrible things. Similarly, too many governments have almost followed the religion of anti-religion, and persecuted religious practices. Keeping them separate ensures that neither one can oppress the other. That opinion is challenged though when you look at the trickle-down effects such as this case...how that policy is actually applied. I feel sort of personally offended as a Christian that I can't silently participate in prayer as a government employee...but I guess I see the (often distorted) greater good behind it, and recognize that somewhere in that policy is the idea that nobody can force me or pressure me to participate in another religion's practices if I don't want to...and I respect that. I guess it's just harder to see since Christianity is the dominant religion in America and we rarely face circumstances where we're pressured to participate in another religion, as someone of another religion might feel about Christianity. My position probably sounds sort of relativist, and I certainly don't mean to sound like a relativist...maybe law school, in teaching me to be able to argue both sides of an issue, has somewhat stripped me of my ability to see absolutes.
Anyway, bottom line, the media didn't give all of the details of the case, so I just wanted to clarify it. Most times you read about crazy court cases in the media, they're completely distorted (like the lady who spilled McDonald's coffee on herself...that case is actually WAY different than the media portrayed).
Just my two cents....or maybe 220 cents? ;)
PS...can you tell I'm seriously procrastinating writing my 30 page paper? :-)
Erin, I appreciate your legal insight, and Herb has explained the same premises to me under other circumstances. At school the admin spoke to the staff about the fine line between our personal freedoms and infringing on the freedoms of students. But I have to say that I find it difficult to swallow that my participation in See You at the Pole is a violation of my students rights. I understand that this circumstance is different, but parts of the situation are the same. Why am I not allowed to bow my head? So students see me publicly pray, outside of school hours (by the way). I don't know...it's a difficult line for me.
I understand that as teachers we have influence, which is a good thing, we need influence in our profession. And no, we should not abuse our influence. But is it abuse of influence to live out my life and faith? Especially if I am outside of school hours? This one causes me great anguish.
School hours are a different story, but sometimes I wonder why the other ways we influence our students aren't considered. For example, when I come back from Disneyland and my students ask me about my weekend and I rave about the great time I had, am I not "indoctrinating" them? It's seems like the same thing as me coming to school Monday after a church retreat and speaking of the great time I had. Not that I've done the latter, but I have done the former, and the difference seems minimal to me.
Needless to say, it's a difficult issue. There's no clear cut answer. But I have to believe that there has to be an easier answer than eviscerating this coach or any other teacher. Ah, something more to pray for...the list continues to grow.
This is the result of the coach suing the school, not the other way around.
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