Wrap it in all the highfalutin language about principles you want, but when you get to the nub, for the East Brunswick Board of Education, it’s all about the money.
I was saddened last week to learn that despite losing a lawsuit brought by East Brunswick High School football coach Marcus Borden in U.S. District Court in July, and despite claiming at the time they were happy with the decision because it clarified what the coach could and could not do when it comes to participating in team prayer before games, the board has now decided to appeal that decision – a move that could cost community taxpayers even more than it currently threatens to cost.
For readers unfamiliar with the background of this unfortunate dispute, the pot boiled over last year when – reportedly because of complaints from players and parents – the board told Borden he could no longer participate in traditional team prayers before games. Not only could he not take part in the prayer by saying one along with the team, he could not even take a knee and bow his head during student-initiated prayer as a sign of respect.
Borden originally resigned his position as coach in protest, a move that would have left his players in the lurch, but he soon rescinded his resignation in order to change the system by filing a lawsuit.
At the time, I called that decision bittersweet because I predicted local taxpayers would eventually have to bear the costs of the suit, because I feared the argument would divide the community, and because it was my contention that since Borden was right, it was unfortunate he and the board had to be on opposite sides.
I believed that Borden was arguing an important principle, the freedom of religion guaranteed in the First Amendment of the U.S. Constitution. His argument was that by denying him the right to take a knee and bow his head during traditional before-game prayers, the board was violating his right to freely exercise his own religion and freedom of speech. It was my belief that by the simple act of taking a knee and bowing his head, Borden was not forcing his religion on anyone, only exercising his own constitutionally protected right to pray and speak to his own god.
At the time, I wrote that the founding fathers of our country believed that right to be so unalienable that they guaranteed it in the First Amendment, not the Second Amendment or even the Third Amend-ment. I noted it was the same amendment that protects us all from government infringement upon free speech and religion, the same amendment members of my profession depend on each week as we produce our newspapers.
I wrote that in spite of my disagreement with their position on the matter, I understood why the Board of Education had taken action. They were only doing what they had to do to protect the district by requiring that Borden obey previous court rulings on the issue. Failure to do so, I said, could subject the district to expensive litigation, litigation it might lose.
It was a bad situation, I said, but at least the principles involved in the lawsuit were important – not just to Borden, but to all of us.
In July, U.S. District Court Judge Dennis Cavanaugh agreed with the coach, ruling that Borden was not encouraging prayer by bowing his head or taking a knee during team prayer sessions. Instead, Cavanaugh said, he was simply respecting the team’s traditions.
Days after Cavanaugh’s ruling, East Brunswick Superintendent of Schools Jo Ann Magistro, putting the best possible spin on the decision, said the district “has accomplished its goal, which was to get direction from the court as to what Mr. Borden could and could not do.”
It should have ended there, but sadly for us all, it did not.
What changed between then and news last week that the district would appeal the decision after all? Unfortunately, the appeal is not motivated by principle, it’s motivated by money.
In his suit against the district, Borden was represented by attorney Ronald Riccio, and the district’s cost of about $48,000 was paid to school board attorney Martin Pachman by the district’s insurance broker.
Riccio says he tried to negotiate a fair settlement regarding his own fees with the district after Cavanaugh’s ruling. He said he felt the same amount Pachman received was reasonable. Riccio claims Pach-man felt $25,000 was reasonable.
In the end, Riccio asked Cavanaugh to decide, and the judge did just that – ordering the district to pay the amount Riccio claims for legal fees and Borden’s court expenses, which could cost the district up to $100,000.
Believe me when I tell you that the district does not want to pay that money, and it admitted the $100,000 fee hanging over its head was a major motivation in appealing Borden’s case.
Working with pro bono representation by lawyers from Americans United for Separation of Church and State, the district has decided to roll the dice.
If the school district wins, it likely won’t have to pay Riccio’s fees or Borden’s court costs. If it loses, it likely has to pay Riccio even more.
The wisdom of that course is already being debated in East Brunswick, across New Jersey and in the offices of Greater Media Newspapers. Last week, for example, the managing editor of the East Brunswick Sentinel wrote that he believed the board is making the best choice. “It may be a risk,” he wrote in the editorial, “but if it has solid legal ground to believe an appeal would be successful, it’s hard to argue the board is taking the wrong course of action here.”
I disagreed with that stance then, and still do, but because we believe in the principles of the First Amendment, and because we believe our pages should be a free-flowing forum of sometimes opposing but reasonable ideas, the editorial stands as the newspaper’s official opinion.
When it comes to protecting the taxpayers of East Brunswick from these onerous legal fees, I hope the editor is right. But if he is, an important constitutional guarantee will have been degraded. A lofty battle of principles will have been decided by the results of a crass skirmish over money.
And that, I believe, is a greater loss for us all.
Gregory Bean is executive editor of Greater Media Newspapers. He can be reached at [email protected].