For 23 years, East Brunswick football coach Marcus Borden led his team in religious prayer before games and at an annual dinner. After receiving complaints from students who were uncomfortable with the prayers, East Brunswick school officials properly told Borden he must stop. however, Borden continued to endorse those prayers by joining in during student-led prayers, kneeling with them and bowing his head. When the school district again stepped in and prohibited that activity, Borden sued. The ACLU-NJ submitted a friend-of-the-court brief supporting the school district.
On April 15, 2008, the Third Circuit Court of Appeals upheld the high school's prohibitions. The Court wrote that, based on Borden's history of leading the prayers, "a reasonable observer would conclude that Borden is showing not merely respect when he bows his head and takes a knee with his teams and is instead endorsing religion."
Although all three judges of the Court of Appeals arrived at the same conclusion, they did so for three separate reasons. The judge who wrote the court's primary decision stated that the coach's actions endorsed the religious activity specifically because of the past history. Another judge explained that, even absent the history, a coach who kneels and bows his head in prayer with students is clearly endorsing the prayer. A third judge agreed that the school could properly foreclose the coach from joining in the activities but would not hold that the activities of kneeling and bowing one's head necessarily expressed an improper endorsement of the religious activity.
Borden sought a rehearing of the case by the entire Third Circuit but, on May 16, 2008, the judges declined.