S w 909E24 ENGRO CHEMICALS PAKISTAN LIMITED — .docx

S w
909E24
ENGRO CHEMICALS PAKISTAN LIMITED — BUSINESS
DISASTER
OVERCOME
Muntazar Bashir Ahmed wrote this case solely to provide
material for class discussion. The author does not intend to
illustrate
either effective or ineffective handling of a managerial
situation. The author may have disguised certain names and
other identifying
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Copyright © 2009, Ivey Management Services Version: (A)
2009-12-14
On October 20, 2007, Ruhail Mohammed, vice-president and
chief financial officer (CFO) of Engro
Chemical Pakistan Limited (Engro) was preparing his notes to
present at the management committee
meeting on November 1, 2007. A critical item on the agenda
was that on August 19, 2007, a fire in the
PNSC building, which housed the Engro head office, had
destroyed a substantial portion of the company’s
hard-copy records relating to the financial years 2004/05 and
2005/06, as well as the period from January
1, 2007, to August 19, 2007; however, the electronic data had
remained largely intact. The end of the
company’s financial year was December 31, and the external
auditors were due to commence their work in
December 2007, as the deadline to publish the annual financial
report was February 20, 2008. The
company was listed on the Karachi Stock Exchange (KSE) and,
being a blue chip company, had informed
the stock exchange of the date it would announce its final
results for 2007.
Mohammed had to update the management committee on the
progress that had been made under a plan
according to which the company’s critical accounting and
control systems and data would be restored, so
as to keep company operations uninterrupted. The auditors had
pointed out that, since they had earlier
conducted a review of the financial records as of June 30, 2007,
they would rely on that work and not need
any records for the first six months. Their main focus would be
on the second half of the year, and this

would require that the company provide them with all the
information that they requested in order to form
an opinion for the annual audit report. As the records for
2005/06 were also destroyed, they were
concerned that the company could be in breach of the statutory
provisions in the Companies Ordinance1
relating to the minimum period that a publicly-listed company’s
records were required to be retained.
Engro was launching a number of new projects, and the auditors
needed to be satisfied that the plans would
1 The corporate sector in Pakistan is governed by the
Companies Ordinance 1984, which was promulgated on October
8,
1984 and major amendments made via the Companies
(Amendment) Ordinance, 2002. The objectives of the
Companies
Ordinance 1984 were inter alia to consolidate and amend the
law relating to companies and certain other associations for
the purpose of healthy growth of corporate enterprises,
protection of investors and creditors, promotion of investment
and
development of economy. The detailed provisions of the
Companies Ordinance, 1984 sought to meet these objectives and
have been amended and updated from time to time to keep in
line with the changing circumstances.
This document is authorized for use only by Phenekia Morgan
in WMBA-6030-1/WMBA-6030B-1-Managing Business Info
Syst2020 Summer Sem 05/04-08/23-PT2 at Laureate Education -
Walden University, 2020.
Page 2 9B09E024

not be affected by the loss of records. The CFO was confident
in the company’s documented disaster
recovery plan (DRP) that had been activated, and he felt that
matters were under control.
COMPANY BACKGROUND
Engro Chemical Pakistan Ltd. had been incorporated in 1965 as
Esso Pakistan Fertilizer Company Ltd.
The core business of Engro was the manufacturing and
marketing of fertilizers and it was the second
largest producer of urea in the country, which was produced at
the plant site in Daharki (a small town 570
kilometers from Karachi). Engro also produced NPK2 (Zarkhez)
at the plant in Port Qasim, a few
kilometers from Karachi, and marketed two other brands of
fertilizer: MAP under the brand name Zorawar
and DAP. Owing to the continuously declining margins in seed
business, the management had decided to
exit from this business in a phased manner. This demonstrated
the management’s proactive business
approach of conducting a continuous review of operations and
realigning corporate strategy according to
changing business dynamics.
During 2007, all of Engro’s businesses grew rapidly. The
principal business of the company remained in
the manufacturing and marketing of fertilizers. Its joint ventures
and subsidiary companies were engaged
in a variety of businesses: chemical terminals and storage, PVC
resin manufacturing and marketing,
control and automation, foods and energy businesses. A brief

review of the main business and the new
projects underway follows:
The fertilizer sold by the company was of two types:
Urea: During 2007, a total of 4.76 million tons of urea was
produced in the country, of which Engro
produced 954,000 tons while in the process of further
expansion. The urea plant expansion was the largest
private sector investment that had been made in the history of
Pakistan. In 2007, it was on track for
completion in 2010, and with key contracts and financing in
place, the construction work had begun.
Phosphates: Engro sales up to the third-quarter of 2007
indicated that it would be in a good position as the
market leader, as it expected to capture 35 per cent of the
phosphates market for the full year. This
fertilizer was imported and its price was susceptible to
fluctuations in the international market.
The activities of subsidiary and joint venture companies were as
follows:
Engro Polymer & Chemicals Ltd (EPCL): This subsidiary was
involved in the manufacturing and sales of
poly vinyl chloride (PVC) and was also being expanded: its
backward integration project was expected to
be completed by mid-2009.
Engro Vopak Terminal Ltd (EVTL): This was a 50:50 joint
venture with Royal Vopak of the Netherlands.
This subsidiary had commenced building the country’s first
cryogenic ethylene storage facility.
Avanceon: Engro owned 63 per cent of Avanceon, which was a

leader in industrial automation business. It
had acquired facilities in the United States and was in the
process of seeking to serve customers as an
offshore outsourced vendor.
2 NPK is a fertilizer consisting of nitrogen , phosphorus and
potassium.
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Engro Foods Limited (EFL) : This was a wholly-owned
subsidiary of Engro and 2007 was its first
complete year of operations. It had continued its expansion by
adding to its brand portfolio, milk
production and distribution capacity.
Engro Energy (Pvt) Ltd: This was also a wholly-owned
subsidiary of Engro and had concluded the
formalities to set up an innovative and cost-effective power
plant: their target was to add 217 megawatts to
the national grid.
Engro Eximp (Pvt) Ltd: This was a wholly-owned subsidiary of
Engro and was engaged in the trading of
phosphatic fertilizers.

Engro was publically listed on the three stock exchanges in
Pakistan: Karachi, Lahore and Islamabad. Its
earnings had grown steadily over the last 10 years (see Exhibit
1), as shown by the increasing trend in the
annual earnings per share (see Exhibit 2).
A leading Pakistani business conglomerate known as the
Dawood Group (DG) held the majority 42 per
cent of shares in Engro, while the ownership of Engro
employees and employee trust shareholding was
eight per cent. Engro’s board of directors comprised five
members from its own management: two from
DG and three other non-executive directors (see Exhibit 3).
During 2006, Hussain Dawood, chairman of
DG, was elected as the chairman of Engro. The association of
DG, which also owned other chemical
businesses, had augmented the capacity of the board to guide
the management in formulating its long-term
strategy.
MANAGEMENT
The company was managed through the following principle
management committees:
Board Compensation Committee: This committee was
responsible for reviewing and recommending all the
elements of compensation, organization and employee
development policies relating to the executives and
approving all matters relating to remuneration of executive
directors and members of the management
committee. This committee (see Exhibit 3) consisted mainly of
non-executive directors and had met four
times during 2007.

Board Audit Committee: This committee consisted of four
independent non-executive directors (see
Exhibit 3). The chief executive officer (CEO) and the CFO only
attended if they were invited. As part of its
work, the committee met with the external auditors at least once
per year. During 2007, this committee had
met seven times and had been informed by the CFO of the data
loss the company had incurred, and that the
DRP was being implemented.
In addition, the following committees were set up at the
operational level and functioned in advisory
capacity in order to provide recommendations to the CEO
relating to business and employee matters.
Corporate HSE Committee: This committee was responsible for
providing leadership and strategic
guidance on all health, safety and environment (HSE)
improvement initiatives and was responsible for
monitoring compliance against regulatory standards and
selected international benchmarks.
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Management Committee: This committee was responsible for

reviewing and endorsing long-term strategic
plans, capital and expenses budgets, development and
stewardship of business plans and reviewing the
effectiveness of the risk management processes and the system
of internal control (see Exhibit 3).
COED Committee: This committee was responsible for the
review of compensation, organization and
employee development (COED) matters for all employees
excluding directors and executives.
BUSINESS RISKS
During 2007, the management committee undertook a review of
the major financial and operating risks
faced by the company. Internal controls were recognized by the
company as being an important
responsibility of the board of directors. As no system could be
totally risk-free, the company recognized
that the system of controls was there to minimize risk of
material misstatement or loss, but could not
eliminate it completely. The detailed design and operation of
the system of internal control had been
delegated to the CEO while the board retained the overall
responsibility of the risks involved. The control
framework consisted of:
• Clear organization structure;
• Established authority limits and accountabilities;
• Well-understood policies and procedures;
• Budgeting and review processes.
The external and internal auditors’ reports were received by the
board audit committee (BAC), and the
managing committee reviewed the processes and ensured that

the controls were effective.
BUSINESS CONTROL SYSTEMS
Engro’s business transaction data processing and
communications was based on using information
technology (IT) resources at two locations:
1. Head office in PNSC Building at Karachi.
2. Plant site at Daharki, which was 570 kilometers away.
All systems were linked so that the IT applications installed on
servers in the head office were being
accessed by users at various locations:
• Daharki plant;
• Zarkhez plant at Port Qasim;
• Other regional offices.
IT INFRASTRUCTURE AT HEAD OFFICE
The IT assets at the head office consisted of computer
equipment linked via an online data communication
network on which different application systems were being
used. The company staff occupied three floors,
in the multistory PNSC building, and computer users were
spread over all three floors. Computing
equipment on each of these floors was connected by means of a
fibre optics backbone and each floor had

9B09E024
its own network control equipment such as switches. The head
office was also connected to different
locations through a wide area network (WAN) (see Exhibit 4).
The details of these links for various
locations were as follows:
• 256 kilobits per second (kbps) DXX3 link with plant site at
Daharki;
• 64 kbps radio link with Zarkhez plant at Port Qasim;
• 64 kbps DXX link with regional office at Multan;
• 64 kbps DXX link with regional office at Hyderabad;
• 64 kbps data link with regional office at Lahore.
The server room was on the seventh floor where all
communication links terminated onto the central router
in that room.
Engro’s two joint venture companies EPCL and EVTL had their
head offices close to Engro in the Bahria
Complex4. Systems of these two companies were also connected
with the Engro network by a digital
subscriber line (DSL) link through a firewall mainly for
exchanging e-mails with Engro and to access the
Internet.
There were two Internet connections: one with the Internet
service provider (ISP) CyberNet over radio link
for Internet bound e-mails and connectivity with Lahore
regional office, the other based on DSL

technology with the ISP Multinet and being used for Internet
traffic. A firewall was used to protect Engro’s
network from various Internet threats.
The following Engro communication and financial application
systems were located at the head office:
• Lotus Notes-based e-mail system;
• MIDAS system for sales;
• SAP ERP system (see Exhibit 5) for accounting transactions.
IT INFRASTRUCTURE AT DAHARKI PLANT
All the key buildings at the Daharki plant were connected
through optical fibre backbone and each building
had its own network equipment. All servers were located in a
server room which was located in the
administration building. The Daharki network was connected to
the head office network by a data
communication link. This link was based on DXX technology
and consisted of a last mile radio link
between the plant and the local Daharki telephone exchange.
The staff at the Daharki plant connected to
the router in the server room over dial-up telephone lines to
access the Internet.
3 Digital cross-connect: A network device used by telecom
carriers and large enterprises to switch and multiplex low-speed
voice and data signals onto high-speed lines and vice versa. It is
typically used to aggregate several T1 lines into a higher-
speed electrical or optical line as well as to distribute signals to
various destinations; for example, voice and data traffic may

arrive at the cross-connect on the same facility, but be destined
for different carriers. Voice traffic would be transmitted out
one port, while data traffic goes out another. Cross-connects
come large and small, handling only a few ports up to a few
thousand. Narrowband, wideband and broadband cross-connects
support channels down to DS0, DS1 and DS3
respectively.
4 Bahria Complex was a set of office buildings, owned by the
Pakistan Navy, in which various companies had rented space
for their offices.
Page 6 9B09E024
APPLICATION SYSTEMS AT HEAD OFFICE
E-mail Setup
Engro’s e-mail system was based on IBM’s Lotus Domino
technology, and Lotus Notes was used as a
front-end client to access the e-mail server (see Exhibit 4).
Users in the Karachi office, Zarkhez plant and
all the regional offices except the Daharki region accessed the
e-mail server in the head office.
The head office server was connected to the e-mail server in
Daharki over a wide area network (WAN). It
was also connected to EVTL and EPCL’s e-mail servers over a

DSL-based virtual private network (VPN)
link. All Internet e-mails for Engro Karachi staff, plant staff at
Daharki and regional office users EVTL,
EPCL and EFL were received by the head office server through
a firewall. Similarly, all outgoing e-mails
were sent to the relay server by the e-mail server at the head
office. The Engro infrastructure was used by a
number of subsidiaries to route their business communications.
MIDAS Setup
MIDAS was an in-house application developed using Oracle
Developer, linking to the back-end Oracle
database. MIDAS used two servers in the head office: an
application server and a database server. The
head office users accessed the database server through the
Oracle client directly while all remote users
(regional offices and Zarkhez plant staff) accessed MIDAS
through the application server via an Internet
browser. There was one MIDAS server at the plant, which was
accessed by the plant distribution
department for the detailing of urea orders to the truckers and
for processing their invoices.
Key activities performed by different users through MIDAS at
the head office were the following:
• Master data (new-product setup, urea pricing);
• Bank guarantee handling;
• Management of dealers account;
• Payroll allowance entry;
• Product shipment from the port and Zarkhez plant;
• Monthly closing.
All information entered in the head-office MIDAS server was

automatically replicated to the plant MIDAS
server using a replication feature created by Oracle. Similarly,
any information entered at the plant (such as
trucker detailing, etc.) was replicated to the head-office MIDAS
database server automatically.
SAP Setup
SAP was being used by the finance and human resource (HR)
sections at the head office and by the
Industrial Relations Department at the plant to facilitate their
operational needs (see Exhibit 5). Only two
modules of SAP — namely HR and financial control (FICO) —
were in use on the Red Hat Linux
Advanced Server operating system. The following key tasks
were performed using SAP at head office:
• Accounts payable (invoice processing, payments, vendor
payment, cash receipts, cheque printing);
• General ledger;
• Financial control;
Page 7 9B09E024
• Asset management;
• Payroll processing (all Engro employees);

• Compensation and benefit administration (all Engro
employees).
APPLICATION SYSTEMS AT PLANT
The applications installed on servers at the Daharki plant were
accessed mainly by users at the plant,
consisting of the following systems:
• MAXIMO computerized maintenance management system
(CMMS), also used by the purchasing
section at the head office.
• MIDAS sales and distribution system which was used to
update the shipments of goods and other
related information.
• E-mail systems.
MAXIMO SETUP
MAXIMO was a state of the art CMMS software system used by
various organizations worldwide for
computer-based maintenance management: this system was
installed at the Engro plant. The main modules
that were used kept a detailed record of company assets,
controlled the use of the stores and spares
inventories and assisted in purchasing functions. The
manufacturing division located at the plant and the
purchasing section located at the head office used this software
extensively. All other departments that
used MAXIMO were at the plant: maintenance, operations and
technology and the warehouse section.

DISASTER RECOVERY PLAN
As the August 2007 fire at Engro head office had spread very
quickly, it destroyed everything, including
all desktop computers and high-performance servers that
contained daily business transaction data. Earlier
in 2005, as part of a risk mitigation effort, the IT department
had developed a DRP to recover from a
disaster (see Exhibit 6). In accordance with the DRP
instructions, the plan was activated by Mohammed on
August 20, as the company senior management realized that
quick actions were required by all concerned.
TEMPORARY OFFICES
The IT department consisted of two sections, each with its own
particular skill: one section was dedicated
to managing the IT infrastructure, and the other consisted of
functional specialists dealing with information
systems (IS) applications (SAP, MAXIMO and MIDAS). The
DRP required that the recovery site be at the
Daharki plant, where spare servers similarly configured to the
destroyed servers had been kept for use in an
emergency. Management revised the plan, however, by deciding
to use the following four locations:
1. Engro guest houses in Karachi: There were two guest houses,
one of which became a base for HR
functions and the executives, while the other became a
temporary base for accounting and other
transactional functions.

Page 8 9B09E024
2. Engro plant at Daharki: The sales accounting staff that used
the internally-developed MIDAS system
were moved there as the complete backup of MIDAS and the
necessary computing capacity was
already in place.
3. Engro Polymer offices at the Bahria building in Karachi: The
backup servers kept at Daharki, with
SAP software already installed, were brought to the Bahria
building in order to set up the critical
accounting systems. The related staff were also shifted to the
offices of this subsidiary company. As
there was a computing infrastructure already available, Engro’s
e-mail system was expected to become
functional quickly,establishing all communication as before.
The IT infrastructure staff then had to make sure that adequate
computing facilities were available. This
was a monumental task, as sophisticated servers and other
peripherals were required quickly. They asked
their key vendor Inbox Business Technologies (Pvt) Limited
(Inbox) for assistance and Inbox staff worked
closely with Engro IT staff to reestablish the infrastructure. The
Inbox team ensured timely and swift
delivery of the required services, workstations, laptops, low-end

servers, wireless LAN/WAN,
uninterruptible power supplies (UPS), printers and other
necessary products.
DATA RECOVERY
The Engro core accounting system consisted of the following:
1. Three modules of SAP (HR, financial accounting (FI) and
controlling (CO), the last two jointly
referred to as FICO);
2. The MIDAS system;
3. The MAXIMO system.
The top priority was to make all the SAP modules operational
on the backup servers at the Engro Polymer
offices in Karachi. The sales system, MIDAS, was being
operated from the plant in Daharki where all the
head office sales staff had relocated. MAXIMO was located at
the plant and had not been affected by the
disaster.
The backup regime for SAP applications data had consisted of
saving copies of the data on a weekly,
monthly and annual basis using tapes that were stored at an off-
site location. The data was also backed up
on tapes by the IT staff on a daily basis and kept in the head
office in a fire-proof storage cabinet. On a
weekly basis, the tape relating to the last business day in the
week was sent off-site for storage.
The daily backup was destroyed as it was in the head office
building. Some data relating to a short period
of time was also lost due to corruption of weekly data tapes, and

this had to be carefully identified and
recreated.
The MIDAS sales system was installed at the head office and at
Daharki. The backup regime, in addition
to daily, weekly and monthly tape backups, included the data
synchronization between head office and
Daharki servers using Oracle’s replication feature, so that there
was complete backup available at both
locations. Hence the sales staff were sent to Daharki to use the
MIDAS system from there.
Accounting records that were destroyed included the physical
records such as vendor invoices, contracts
and working papers.
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Engro used an outsourced service provider for processing the
share and corporate secretarial records,
therefore protecting that information. After setting up
temporary offices, the company then launched an
initiative to recreate significant lost records for the period
January 1, 2007, onwards.
EXTERNAL AUDIT

The external auditors were due to carry out their final audit
checks in December, and the senior accounts
advisor Farhan Akram, who was in charge of recreating the
documents related to SAP, was confident that
the documents supporting the transactions data for the period of
January to August 19, 2007 would be fully
recreated. He had split his finance team located at the guest
house into two sections:
1. Day to day accounting staff: The ongoing daily business
transactions related to accounting of sales and
purchases were processed on the reinstalled systems, including
MIDAS, MAXIMO and SAP. This was
facilitated by the reestablished electronic links, e-mail and
Internet in the Bahria building office. As the
systems were not fully integrated, their restart and recovery was
simpler than if all the systems had
been integrated.
2. Data recreation staff: One of the leading public accounting
firms was hired to provide temporary
accounting staff who had four to five years of training
experience. This staff was given the specific
task of reconciling duplicate invoices received from all major
vendors. Once the veracity had been
thoroughly checked, the documents were passed on to Engro
employees for entry into the SAP
modules. Similarly, the payment records for the lost data were
obtained from the banks that were used
for payment, and after checking and reconciling this data, the
payments were entered in the systems.
Data had to be recreated only for SAP applications, and that too
was facilitated as the company was
able to obtain the records from its banks.

The company found the process of generating document records
to be a tedious and time-consuming task
requiring external resources, and it was therefore decided that
only the current year’s data needed to be
recreated, as it was necessary for the year’s audit. The company
felt that there would be no purpose in
incurring a huge cost for regenerating physical documents, as
the prior years’ records had been audited and
the data was safe in electronic form. The company had also
informed their taxation office, the Large
Taxpayers Unit, of the fire and its consequences.
The auditors insisted that the physical records for 2005 and
2006 would be required, as Companies
Ordinance stipulated that data must be kept for 10 years. They
said that a qualified audit opinion stating
noncompliance with the statutory regulations related to historic
data would be given.
CORPORATE GOVERNANCE AT ENGRO
In its draft annual report for 2007, the company intended to
include the compliance statement required for
statutory purposes. This specifically addressed the following
areas:
Risk Management Process
In 2007, a major review of the financial and operating risks
facing the company was undertaken by the
management committee. As soon as the fire broke out and it was
clear that the office accounting records

would be destroyed, the company activated its DRP, which was
developed by the IT section in 2005.
Page 10 9B09E024
Internal Control Framework
The board audit committee received the reports on the system of
internal controls from the external and
internal auditors, and also reviewed the process of monitoring
the internal controls. The internal audit
function carried out reviews on the financial, operational and
compliance controls, and …
1
The 1st, 4th, and 14th Amendments; and, FERPA and HIPAA
Dr. Terry Conkle
Lesson 02
Spring 2020
1
2

The 1st Amendment of the U.S. Constitution - Religion and
Expression
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
The first of the First Amendment’s two religion clauses reads:
“Congress shall make no law respecting an establishment of
religion … .”
The clause is absolute. It allows no law. It forbids more than
the establishment of religion by the government. It forbids even
laws respecting an establishment of religion.
2
3
The Establishment Clause
The First Amendment's Establishment Clause prohibits the
government from making any law “respecting an establishment
of religion.”
This clause not only forbids the government from establishing
an official religion, but also prohibits government actions that
unduly favor one religion over another.
It also prohibits the government from unduly preferring religion
over non-religion, or non-religion over religion.
3
4
The Free Exercise Clause
The 1st Amendment's Free Exercise Clause reserves the right of

American citizens to accept any religious belief and engage in
religious rituals they choose.
Wording in the free-exercise clauses of state constitutions that
religious opinion, expression of opinion, and practice are / were
all expressly protected.
Protects religious beliefs AND actions made on behalf of those
beliefs.
Wording of state constitutions suggest that free exercise
envisions religiously compelled exemptions from at least some
generally applicable laws (what contributed to the 2018/2019
“measles outbreak?”).
The Free Exercise Clause protects religious belief and
expression; and, seems to allow for violation of laws, as long as
that violation is made for religious reasons.
4
5
2 “Religion” Clauses in Conflict
Constitutional scholars and even Supreme Court opinions have
contended that the two religion clauses are in conflict.
The Free Exercise Clause implies special accommodation of
religious ideas and actions, even to the point of exemptions to
generally applicable laws.
Such a special benefit seems to violate the neutrality between
“religion and non-religion” mandated by the Establishment
Clause.
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6
The Conflict, Explained Further

Historically, the Supreme Court has been inconsistent. When
the Court leans toward more accommodation for the Free
Exercise Clause, there is greater conflict.
When the Amendment was drafted, it applied only to the U.S.
Congress – state and local governments could abridge the free
exercise of religion as long as there was no similar provision in
the state constitution.
In 1940, the Supreme Court held in Cantwell v. Connecticut
that, due to the 14th Amendment, the Free Exercise Clause is
enforceable against state and local governments – or that the
free exercise of religion is one of the “liberties” protected by
the “due process clause.”
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The 1st Court Test Regarding Religion
The United States Supreme Court heard few church-state cases
between 1791 and 1946. Until the Civil War and the passage of
the 14th Amendment, the 1st Amendment did not apply to
states.
In Everson v. Board of Education (1947), Justice Hugo L. Black
(on the Court 1937-1971) detailed the history and importance of
the Establishment Clause.
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The Establishment Clause Test (1947)
He stated the majority opinion, and itemized the meaning of the
“establishment of religion clause”:

Neither a state nor the federal government can set up a church.
Neither can pass laws which aid one religion, aid all religions,
nor prefer one religion over another.
Neither can force nor influence a person to attend or remain
away from church against his will or force him to profess a
belief or disbelief in any religion.
No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or non-
attendance.
No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be
called or whatever form they may adopt to teach or practice
religion.
Neither a state nor the federal government can openly or
secretly participate in the affairs of any religious organizations
or groups and vice versa.
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The Establishment Clause Test (1947 - 1971)
The aforementioned principles became known as
“The Establishment Clause Test.”
Other tests for constitutionality of laws and actions were
introduced by Supreme Court justices and replaced the
establishment clause test over the next 50 years.
Since 1971 The Courts have used three tests when deciding
establishment clause cases (a case must clear all 3 tests):
The Lemon Test,
The Endorsement Test, and
The Coercion Test.
9

10
Lemon v Kurtzman (1971)
Lemon v Kurtzman (403 US 602, 1971). The U.S. Supreme
Court decided a Rhode Island law allowing the state to pay
partial salary of parochial school teachers was unconstitutional.
One result of this case is the Lemon Test - used to determine if
a law violates the 1st Amendment.
There is considerable discussion in the general public, and
periodically in The Court, about the Lemon Test. However, it
has been a guide for lower courts since 1971.
“A government practice is constitutional if:
it has a secular purpose,
its primary effect neither advances nor inhibits religion,
and it does not excessively entangle government with religion.”
10
11
Lynch v. Donnelly (1984)
Justice Sandra Day O’Conner, first proposed The Endorsement
Test in Lynch v. Donnelly (1984).
The Endorsement Test asks whether the challenged law or
government action has either the purpose or effect of endorsing
religion or disapproving of religion in the eyes of the
community members?
O’Connor argued, “Endorsement sends a message to non-
adherents that they are outsiders, not full members of the
political community, and an accompanying message to
adherents that they are insiders, favored members of the
political community… What is crucial is that the government
practices not have the effect of communicating a message of
government endorsement or disapproval of religion.”

11
12
The Endorsement Test
Lynch v. Donnelly [465 U.S. 668, 687-694 (1984] and
County of Allegheny v. ACLU [492 U.S. 574, 594 (1989)],
determines if a fully informed hypothetical observer would
view a government practice as either endorsing or disapproving
of religion.
12
13
Lee v. Weisman (1992)
Justice Anthony Kennedy proposed a “coercion” standard in Lee
v. Weisman (1992). In this case, the test focused on the
psychological coercive effect of clergy-led prayer at graduation
ceremonies. The Court found, “The school district’s
supervision and control of a high school graduation ceremony
places subtle and indirect public and peer pressure on attending
students to stand as a group or maintain respectful silence
during the invocation and benediction.” The Court stated in its
decision, “… at a minimum, the Constitution guarantees that
government may not coerce anyone to support or participate in
religion or its exercise.”
Justice Kennedy, a devout Catholic and former altar boy, further
stated, “The atmosphere at a state legislature’s opening, where
adults are free to enter and leave with little comment and for
any number of reasons, cannot compare with the constraining
potential of the one school event most important for the student
to attend.”

13
14
The Coercion Test (1992)
The Coercion Test – Lee v. Weisman [505 U.S. 577 (1992)],
the court must consider a school-sponsored religious activity in
terms of the coercive effect that the activity has on students.
14
15
The 3 Tests are Applied Together
The “Lemon” Test - To pass constitutional muster, a
governmental action must:
1. Have a secular legislative purpose;
2. Have its principal or primary effect be one that neither
advances nor inhibits religion; and
3. Not foster an excessive entanglement with religion.
The “Coercion” Test - The government may not pass a
statute or implement a practice that uses the machinery of the
state to coerce believers, as well as nonbelievers and dissenters
to enforce a religious ideal or orthodoxy.
The “Endorsement” Test - The government may take action
or pass a statute if:
1. The government has a secular purpose for the action; and
2. In the eyes of a reasonable observer, familiar with history
and context, the primary effect of the action does not endorse
religion.
15

16
“Unconstitutional Prayer and Religion”
in Public School Sport, etc.
Freedom from Religion Foundation – based in Madison, WI
Dan Barker and Annie Laurie Gaylor (co-presidents)
Incorporated in 1978, in Wisconsin, the purposes of the
Freedom From Religion Foundation, Inc., as stated in its
bylaws, are to promote the constitutional principle of separation
of state and church, and to educate the public on matters
relating to non-atheism. There state and/or sub-state chapters in
all 50 states.
Alabama Freethought Association – based in/near Munford, AL
North Alabama Chapter - Huntsville
Montgomery Area Chapter
Southeast Alabama Chapter - Dothan
West Alabama Chapter - Tuscaloosa
16
17
4th Amendment of the U.S. Constitution - Search and Seizure
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
17

18
Unwarranted Search and Seizure?
A local school board rule requires random drug-testing of
athletes at the school or within the school system.
A local school board rule requires drug testing of all athletes at
the school or within the school system.
A local school board rule requires drug-testing of all students
participating in any extracurricular activity-band, choir, or
school club to submit a urine sample for analysis.
18
19
14th Amendment of the U.S. Constitution -
Section 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
19
20
Due Process Violation?
How do you tell an 84-year-old school employee, with 61 years
of employment at the school, that he is fired?
Campus police urged the trustees to stay away from the man's

modest ranch house on McKee St. Can it wait until morning?
No, there would be leaks. A man should never find out he was
fired by reading the morning newspaper.
A note should be delivered, directly; and it should simply list a
name and phone number to call so he could hear the news from
a trustee.
Just before 10 p.m., Fran Ganter (associate AD for Football
Operations, and 30-year friend of the coach) was standing
inside the house. "I was asked to deliver this...." John Surma's
name and cellphone number were scribbled on a piece of small
note paper emblazoned with the word FOOTBALL and a
watermark image of the team's helmet. On his kitchen phone,
Joe Paterno learned he was "terminated" as head coach,
"effective immediately."
20
21
FERPA
The Family Educational Rights and Privacy Act (FERPA) (20
U.S.C. § 1232g; 34 CFR Part 99) is a Federal Law that protects
the privacy of student education records. The law applies to all
schools that receive funds under an applicable program of the
U.S. Department of Education.
It applies to any record that directly relates to a student and is
maintained by an educational agency or institution or by a party
acting for the agency or institution.
21
22

HIPAA
The federal Health Insurance Portability and Accountability Act
was interpreted initially, in the physical activity-sport realm, as
restricting those with informed knowledge from releasing
health/medical information for a student or athlete to anyone
without the “patient's” express consent.
Under Current interpretations, as noted in the act, it applies
specifically to a “Covered Entity,” including:
(1) A health plan,
(2) A health-care clearinghouse, or
(3) A health care provider who transmits any health information
in electronic form in connection with patient health/medical
information transaction, that
Discloses, releases, transfers, provides access to, or divulges in
any manner, a patient's health/medical information outside the
entity holding the information.
22
23
Interpretations
By transactions, HHS means many administrative procedures,
such as billing, payments, authorization for services,
certification of referrals, benefits coordination, eligibility
determination, and verification of the status of claims.
An athletic trainer or coach at a school is not automatically a
covered entity. If the ATC bills for medical coverage or bills
athletes’ insurance plans for in-house or outside treatment,
however, that may make the employer a covered entity. If an
ATC does not conduct any electronic transactions, but other
employees in the institution do, it gets a bit muddy. “You have
what’s known as a hybrid entity,” according to HIPPA experts,
including the athletics implications. “A hybrid entity is an
organization with some aspects of its operation that are covered

entities, and some that are not.
23
24
Communicating Status, Condition,
or Treatment
Another issue involves relations between covered and non-
covered entities who work together. For example, a physician in
a private practice working with a non-covered athletic
department will need to communicate with the school’s athletic
trainers or coaches. The physician’s disclosure of information
about players he or she is treating would be restricted, but the
athletic trainers are not. If the physician discloses information
to an ATC or coach do they then become covered entities?
Best Practice:
Protect athlete privacy relative to Patient Health Information
(PHI)! If information passes from a physician to an ATC to
coach and it includes more than a treatment plan, and it
becomes headline news, the physician could be called on it.
Mainly to protect the physician, an ATC or coach should be
careful not to disperse any athlete PHI. Or, if an ATC wants to
discuss an athlete’s injury with a coach, the two should be
careful to keep the conversation private.
24
25
“NEED-to-Know Basis”
Congress passed HIPAA in 1996 with several aims, one of
which was to protect confidentiality of medical information.
Rather than being locked away in filing cabinets, patients’

medical records are increasingly being stored as computer files
and flying around the Internet during electronic claims, billing,
care authorizations, and other administrative tasks. Horror
stories abound about misuse and abuse of records.
Unless a patient specifically authorizes release for a certain
purpose, only those with a legitimate need may get a person’s
private medical information, and anyone who maintains such
records must set up procedures to ensure they remain private.
So, although the law was clearly written for aims far removed
from athletics, anyone involved in sport medicine is affected.
Exactly how the law affects athletics is not crystal clear, and
many school athletic departments are struggling with how to
interpret it.
25
26
Relationship Between FERPA and HIPAA
Education and treatment records both fall under FERPA and are
excluded from coverage under the HIPAA Privacy Rules
School may disclose an eligible student’s treatment records for
purposes other than the student’s treatment provided that the
records are disclosed under one of the exceptions to written
consent or with the student’s written consent.
If a school discloses an eligible student’s treatment records for
purposes other than treatment, the treatment records are no
longer excluded from the definition of “education records” and
are subject to all other FERPA requirements, including the right
of the eligible student to inspect and review the records
26

27
How FERPA and HIPAA Affect
Athletic Administrators
and (Head) Coaches
Any disclosure of injury or additional information in student-
athlete records to other than those specifically enumerated in
FERPA can only be done if the student-athlete consents in
writing
Note: Other institutional employees who have a legitimate
educational interest in the records do not need to obtain written
consent
A blanket authorization to release private health information at
the beginning of the year can be used as a prerequisite to a
student-athlete's participation in the athletics program. BUT, a
school system attorney should approve the verbiage!!
27
Flow Chart for Negligence in Physical Activity & Sport
Dr. Terry Conkle, Summer 2020
Risk Management - Preventing Legal Liability for Physical,
Psychological/Emotional, or Property Damage(s)
“Foreseeability”
Civil Law or Tort Law
Tort - A legal wrong resulting in direct or indirect injury to
another individual or to property;
it can be committed through an act of omission or commission.
Tort Law – Law addressing the rights, obligations, and remedies
applied by the courts to provide
relief for persons who have suffered harm from the wrongful
acts of others.

Lawsuits occur in the physical activity arena, associated with
each of the four areas shown below. Criminal Charges are
sometimes associated with negligence and hazing. Some cases
of hazing can involve negligence
Criminal Law
Monetary Fines
Jail or Imprisonment
House Arrest
Community Service
Probation
Etc.
1st , 4th, and 14th Amendments
(Deals with Federal Law)
Gender Equity / Title IX
Negligence & Legal Duties
(Legal Duties typically stem from
Binding Precedents or Persuasive Precedents)
Hazing
(Generally criminal, but often has a tort liability aspect too)
1st Amendment of
The U.S. Constitution
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; …...”
Establishment Clause
Congress shall make no law respecting an establishment of
religion … .”
The clause is absolute. It allows no law. It forbids more than
the establishment of religion by the government. It forbids even
laws respecting an establishment of religion.
Free Exercise Clause
· The 1st Amendment's Free Exercise Clause reserves the right

of American citizens to accept any religious belief and engage
in religious rituals they choose.
· Wording in the free-exercise clauses of state constitutions that
religious opinion, expression of opinion, and practice are / were
all expressly protected.
· Protects religious beliefs AND actions made on behalf of
those beliefs.
· Wording of state constitutions suggest that free exercise
envisions religiously compelled exemptions from at least some
generally applicable laws.
· The Free Exercise Clause protects religious belief and
expression; and, seems to allow for violation of laws, as long as
that violation is made for religious reasons.
Title IX of the Education Amendments Act of 1972 is a federal
law that states:
"No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance."
Gender Equity Issues
(The 3-Prong Test for Gender-Equity/Title IX compliance,
education entities must prove they meet ONE of the following
by):
1) Presenting evidence documenting competitive sport
opportunities for both males and females that are substantially
proportionate to their respective rates of enrollment within the
school.
2) Showing evidence of a history and continuing practice of
expanding opportunities for the under-represented gender.
3) Proving that the organization has truly accommodated (fully
and effectively) the interests and abilities of the under-
represented gender.
In the “Physical Activity World” we have the legal duties to:
· Provide Adequate/Proper Planning (all program areas)
a) Permission to Participate/”Informed Consent”

b) Yearly, Blocks, Daily
· Provide Adequate/Proper Instruction
· Provide Adequate/Proper Supervision
a) Direct and Indirect as Appropriate
· Provide Adequate/Proper Warning of Inherent Risk(s)
a) Permission to Participate/”Informed Consent”
· Provide a Safe Physical Environment (for all entities)
· Provide Adequate//Safe/Proper Equipment
· Match Athletes/Participants Appropriately
a) Physical/Psychological/Cognitive Readiness
b) age//size/skill/etc. (practices & events/contents)
· Know Participants’ Limitations & Strengths
a) Physical/Fitness/Psychological/Cognitive
b) Academic Eligibility for Practice/Competition
· Evaluate Athletes for Injury/Incapacity
a) Physical/Psychological/Cognitive Readiness
· Provide Adequate/Proper Emergency Assistance/Care
a) Including an Emergency Action Plan, all Facilities)
· Keep Accurate Records (e.g., Proof of Athlete Insurance)
· Provide Adequate/Safe Transportation
· Pursue Continual Education/Training for “Best Practices”
A) Selection of Personnel/Education/Training
· Follow Due Process
Negligence, in a nutshell =
failure to do what a reasonable and prudent person would do
in similar circumstances
NFHS (2002) Definition:
“any act or ceremony which creates the risk of harm to the
student or to any other party and that is committed as a form of
initiation into a particular club or activity”
The National Federation of State High School Associations
(NFHS) is the governing body that writes the rules of
competition for interscholastic sports and activities in the
United States.

US Legal, Inc. Definition
An abusive, often humiliating, form of initiation into or
affiliation with a group, including:
· Any willful action taken or situation created which recklessly
or intentionally endangers the mental or physical health of
another
· Any willful act by any person alone or acting with others in
striking, beating, bruising, or maiming; or seriously offering,
threatening, or attempting to strike, beat, bruise, or maim, or to
do or seriously offer, threaten, or attempt to do physical
violence to another
1st Amendment
Gender Equity
Hazing
The 3 Tests Court Tests that as Religion in School Case Must
Pass:
The Lemon Test

Lemon v Kurtzman (403 US 602, 1971). The U.S. Supreme
Court decided a Rhode Island law allowing the state to pay
partial salary of parochial school teachers was unconstitutional.
“A government practice is constitutional if:
· * it has a secular purpose,
· its primary effect neither advances
· * nor inhibits religion,
· * and it does not excessively
· entangle government with
· religion.”
The Endorsement Test
Lynch v. Donnelly [465 U.S. 668, 687-694 (1984] and
County of Allegheny v. ACLU [492 U.S. 574, 594 (1989)],
determines if a fully informed hypothetical observer would
view a government practice as either endorsing or disapproving
of religion.
The Coercion Test
Lee v. Weisman [505 U.S. 577 (1992)],
the court must consider a school-sponsored religious activity in
terms of the coercive effect that the activity has on students.
· Santa Fe Independent School District v. Doe 530 U.S. 290
(2000), U.S. Supreme Court ruled that a policy permitting
student-led, student-initiated prayer at high school football
games violates the Establishment Clause of the 1st Amendment
[Binding Precedent for jurisdictions of USA and its territories].
The 3 parts of Title IX - applied to athletics:
1) Participation: Title IX requires that women and men be
provided equitable opportunities to participate in sports. Title

IX does not require institutions to offer identical sports but an
equal opportunity to play;
2) Scholarships: Title IX requires that female and male student-
athletes receive athletics scholarship dollars proportional to
their participation; and,
3) Other benefits: Title IX requires the equal treatment of
female and male student-athletes in the provisions of: (a)
equipment and supplies; (b) scheduling of games and practice
times; (c) travel and daily allowance/per diem; (d) access to
tutoring; (e) coaching, (f) locker rooms, practice and
competitive facilities; (g) medical and training facilities and
services; (h) housing and dining facilities and services; (i)
publicity and promotions; (j) support services and (k)
recruitment of student-athletes.
The 4 Questions to Determine if Negligence Exists to any
Degree (Meeting The Standard of Care) are:
*Did a legal duty existed or was owed to the injured party
– yes or no?
*Was there a failure to fulfill the duty
– yes or no?
*Was there injury/damage to whom the duty was owed
– yes or no?
*Did failure to fulfill the duty cause/lead to the injury/damage
– yes or no?
Common Defenses in a Negligence Lawsuit
* Plaintiff had Preexisting Knowledge of Activity's Inherent
Risk
* Plaintiff Contributory Negligence
* Plaintiff Comparative Negligence
* Sovereign Immunity
* Good Samaritan Law(s)
* Transfer of Risk in other ways
* Product Liability
* Act of God

Hazing often prosecuted as:
· Sexual assault, aggravated assault, kidnapping, involuntary
deviant sexual intercourse, providing alcohol to minors, or
assault/battery
· Athletes jailed for as long as life sentences
· Athletes losing possibilities of scholarship awards, if not
actual scholarships they had already earned
· Athletes w/ criminal record can prevent future hires
· Juvenile status / sealed records often no help in high profile
cases
· Administrators and coaches losing jobs and serving
jail/prison-time
Battery - Intentional, unpermitted, and offensive touching of the
person of an individual by another (not necessarily resulting in
injury).
Assault - The crime or tort of threatening or attempting to
inflict immediate offensive physical contact or bodily harm that
one has the present ability to inflict and that puts the victim in
fear of such harm or contact; or, an intentional act by one
person that creates an apprehension in another of an imminent
harmful or offensive contact.
Actual physical contact is not necessary; threatening gestures or
words (Verbal Assault) that would alarm any reasonable person
can constitute an assault.
Court-Defined Standard for Hazing as Depraved Indifference:
"the defendant's conduct must be 'so wanton, so deficient in a
moral sense of concern, so lacking in regard for the life or lives
of others, and so blameworthy as to warrant the same criminal
liability as that which the law imposes upon a person who
intentionally causes a crime'," it is Depraved Indifference

1st Amendment
Gender Equity
Hazing
The 3 Tests Applied Together:
· The “Lemon” Test - To pass constitutional muster, a
governmental action must:
1. Does it have a secular legislative purpose?
2. Does its principal or primary effect be one that neither
advances nor inhibits religion? and
3. Does it foster an excessive entanglement with religion?
· The “Coercion” Test -
Does the government have a statute or practice that uses the
machinery of the state to coerce believers, as well as
nonbelievers and dissenters to enforce a religious ideal or
orthodoxy?
· The “Endorsement” Test - Has the government taken action
or pass a statute that:
1. has a secular purpose for the action? and
2. In the eyes of a reasonable observer, familiar with history
and context, can they see that the primary effect of the action
does not endorse religion?
Sexual Harassment/Discrimination
What falls under the scope of Title IX?

All educational programs and activities that receive federal
funds must comply with Title IX. This includes all public
schools and most private schools. Notably, this definition also
includes after-school programs, extracurricular activities,
libraries, museums, and vocational rehabilitation agencies that
receive federal funding.
Who does Title IX protect?
All students are protected from discrimination by Title IX,
regardless of sexual orientation, gender identity, nationality,
immigration status, race or ability. Title IX protects boys and
men as well as girls and women. Title IX also applies to
organizational employees, such as coaches, teachers, staff, and
administrators.
What counts as sex discrimination?
Under Title IX, sex discrimination includes sexual harassment
and gender-based harassment. Sexual harassment comes in
many forms, such as: unwanted sexual comments or advances,
cyberbullying, or any non-consensual sexual contact. Gender-
based harassment is when an individual is harassed or bullied
because they do not conform to gender stereotypes (for
instance, a boy being bullied by his peers for wearing a dress to
school.)
Harassment is prohibited by Title IX when it creates a hostile
environment for the victim such that he or she can no longer
fully participate in or benefit from school. A hostile
environment can be caused by a single incident or by repeated
instances of harassment.
Schools must act against harassment or discrimination
regardless of where incidents occur. Instances of harassment
that occur off-campus may be sufficiently serious to create a
hostile learning environment and therefore fall under Title IX.
What does Title IX require schools to do?
First, schools/school systems MUST create, publish, and widely
distribute an anti-discrimination policy. This policy must

affirm the school’s commitment to non-discrimination based on
gender and include clear definitions of consent, sexual
harassment, sexual discrimination, and sexual violence. The
policy must also provide instructions on how students and
members of the community can make complaints and contact
their Title IX coordinator.
Court-Defined Standard for Hazing as a form of Sexual
Harassment:
"if it causes a concrete [sic, negative] effect on the victim's
education or access to school-related opportunities or
resources," it is Sexual Harassment
3 Levels of Hazing:
1) Subtle
2) Harassing
3) Violent
Hazing Includes. But is not limited to”
risk of physical harm,
whipping,
branding,
substance ingestion,
sleep deprivation,
over-exposure to extreme temp's
(hot / cold),
restraint,
nudity, or
kidnapping
and may include:
Sexual acts or simulations, acts that cause unreasonable
embarrassment or shame, acts that create a hostile or abusive or
intimidating environment for the hazee

The more of these questions that are answered “Yes,” the more
likely it is considered Hazing; but, it can take only 1 “Yes” to
constitute Hazing:
1) Is alcohol involved?
2) Will current members of the group
refuse to participate w/ the new
members / do exactly what newbies
must do?
3) Does activity risk emotional or
physical abuse?
4) Is there risk of injury or a question
of safety?
5) Would vets have any reservation
describing the activity to their
parents, a teacher, or school
official?
6) Would veterans object to the
activity being photographed for a
school newspaper or filmed by
a TV news crew?
FERPA v HIPAA
Gender Equity
Hazing
FERPA
The Family Educational Rights and Privacy Act (FERPA)
(20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal Law that
protects the privacy of student education records. The law
applies to all schools that receive funds under an applicable
program of the U.S. Department of Education.

It applies to any record that directly relates to a student and is
maintained by an educational agency or institution or by a party
acting for the agency or institution.
HIPAA
The federal Health Insurance Portability and Accountability Act
was interpreted initially, in the physical activity-sport realm, as
restricting those with informed knowledge from releasing
health/medical information for a student or athlete to
anyone without the “patient's” express consent.
Under Current interpretations, as noted in the act, it applies
specifically to a “Covered Entity,” including:
(1) A health plan,
(2) A health-care clearinghouse,
or
(3) A health care provider who transmits any health information
in electronic form in connection with patient health/medical
information transaction, that
Discloses, releases, transfers, provides access to, or divulges in
any manner, a patient's health/medical information outside the
entity holding the information.
Legal Precedent Terminology Clarified
There are two types of Legal Precedent: Binding Precedents and
Persuasive Precedents.
Binding (mandatory) precedents, are based on Stare Decisis
(stair – ee Duh – seye – sis),

which means “stand by the decision.” It is a policy of the courts
to abide by or adhere to principles established by court
decisions in earlier cases. It is a jurisdictional precedent that
provides uniform standards of strictness by either individual
state supreme courts over all courts under their jurisdiction, or
The U.S. Supreme Court over all courts.
Another way of viewing it is: Stare decisis is Latin for “to
stand by things decided.” In short, it is the doctrine of
precedent. Courts cite to stare decisis when an issue has been
previously brought to the court and a ruling already issued.
According to the Supreme Court, stare decisis “promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process.” In practice, the Supreme Court will usually defer to
its previous decisions even if the soundness of the decision is in
doubt. A benefit of this rigidity is that a court need not
continuously reevaluate the legal underpinnings of past
decisions and accepted doctrines. Moreover, proponents argue
that the predictability afforded by the doctrine helps clarify
constitutional rights for the public. Other commentators point
out that courts and society only realize these benefits when
decisions are published and made available. Thus, some
scholars assert that stare decisis is harder to justify in cases
involving secret opinions.
The doctrine operates both horizontally and vertically.
Horizontal stare decisis refers to a court adhering to its own
precedent. A court engages in vertical stare decisis when it
applies precedent from a higher court. Consequently, stare
decisis discourages litigating established precedents, and thus,
reduces spending.
Although courts seldom overrule precedent, Justice Rehnquist
explained that stare decisis is not an “inexorable command.” On
occasion, the Court will decide not to apply the doctrine if a
prior decision is deemed unworkable. In addition, significant
societal changes may also prompt the Court to overrule

precedent; however, any decision to overrule precedent is
exercised cautiously.
Persuasive precedents, or Ratio Decidendi (Ray – she – oh Dee
– sid – en – dye), are those decisions in lower courts (or courts
of other jurisdictions) that can NEVER be binding; but, they
can/may influence, inform, or guide a higher court's decision.
Obiter Dicta (plural / multiple, Oh – bit – her Dick – tuh) or
Obiter Dictum (singular / one, Oh – bit – her Dick – tum) refers
to statements made by judges in other courts that do not
establish a precedent, but do provide insight or explanation(s)
as to another judge's thinking or interpretations of fact(s) and
legal principles. They lend support or weight to a given view
concerning a legal matter, when making decisions.
Legal Duties for Coaches, PE Teachers, Athletic
Administrators, Parks and Recreation / Leisure Professionals,
Fitness Employees (anyone working in the physical activity
realm) are based on both types of Legal Precedents.
Court Jurisdictions/Binding Authorities
and Legal Precedents from Persuasive Authorities
This chart displays the principles associated with whether a
legal issue is state or federal, and which court. Find the box in
the left-hand column that applies to a given case. Then, read
across that row to find out which courts bind the case and which
courts are only persuasive. 1) State or Federal Issue? 2) Which
court?
Court Location
Who is the Binding Authority
Who has Persuasive Authority
State issue in state trial court

That state’s state appeals court
That state’s highest court
All federal courts
Other states’ state courts
Other state trial courts in the same state
State issue in state appeals court
All federal courts
State trial courts in the same state
Other state courts of appeals in the same state
State issue in state’s highest court
All federal courts
State trial courts in the same state
State courts of appeals in the same state
Federal issue in state trial court
US Supreme Court
All federal district courts
All federal circuit courts
State courts
Federal issue in state appeals court
US Supreme Court
State courts
Federal issue in state supreme court
US Supreme Court
State courts
State issue in federal district court
Interpretations from the state’s highest court
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Bremerton (WA) School District and (Asst.) Coach Joe Kennedy
SUPREME COURT OF THE UNITED STATES (SCOTUS)
JOSEPH A. KENNEDY v. BREMERTON SCHOOL DISTRICT
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
No. 18–12.
Decided January 22, 2019
1
The Petition for a Writ of Certiorari is Denied
Statement of JUSTICE ALITO, with whom JUSTICE THOMAS,
JUSTICE GORSUCH, and JUSTICE KAVANAUGH join,
respecting the denial of certiorari.
I concur in the denial of the petition for a writ of certiorari
because denial of certiorari does not signify that the Court
necessarily agrees with the decision (much less the opinion) [of
the lower court]. In this case, important unresolved factual
questions would make it very difficult if not impossible at this
stage to decide the free speech question that the petition asks us
to review.
Numerous flaws were emphasized, in the full SCOTUS legal
brief, regarding the lower courts’ thoughts and decisions! It
was implied in that statement, by these “Conservative” Justices,
that they could/would hear the case in the future IF …….
Coach Kennedy’s and counsel are currently considering their
procedural options.
2

The Issues
Issue: Whether public school teachers and coaches retain any
First Amendment rights when at work and “in the general
presence of” students?
Petitioner Joseph Kennedy claims that he lost his job as football
coach at a public high school because he engaged in conduct
that was protected by the Free Speech Clause of the First
Amendment. He sought a preliminary injunction awarding two
forms of relief: (1) restoration to his job and (2) an order
requiring the school to allow him to pray silently on the 50-yard
line after each football game. The latter request appears to
depend on petitioner’s entitlement to the first—to renewed
employment—since it seems that the school would not permit
members of the general public to access the 50-yard line at the
relevant time.
3
October 23, 2015
The superintendent wrote to petitioner to explain why the
district found petitioner’s conduct at the then-most recent
football game to be unacceptable. And in that letter, the
superintendent gave two quite different reasons: first, that
petitioner, in praying on the field after the game, neglected his
responsibility to supervise what his players were doing at that
time and, second, that petitioner’s conduct would lead a
reasonable observer to think that the district was endorsing
religion because he had prayed while “on the field, under the
game lights, in BHS-logoed attire, in front of an audience of
event attendees.” 869 F. 3d 813, 819 (CA9 2017).
After two subsequent games, petitioner again kneeled on the
field and prayed, and the superintendent then wrote to
petitioner, informing him that he was being placed on leave and
was forbidden to participate in any capacity in the school
football program. The superintendent’s letter reiterated the two

reasons given in his letter of October 23. And the district
elaborated on both reasons in an official public statement
explaining the reasons for its actions.
4
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH A. KENNEDY, Plaintiff-Appellant,
v.
BREMERTON SCHOOL DISTRICT, Defendant-Appellee
No. 16-35801
D.C. No. 3:16-cv-05694-RBL
Appeal from the U.S. District Court for the Western District of
Washington - Seattle, Washington
Argued and Submitted June 12, 2017
5
Factual and Procedural Background
Bremerton School District (BSD) is located in Kitsap County,
WA, across the Puget Sound from Seattle. It is home to
approximately 5,057 students, 332 teachers, and 400 non-
teaching personnel. BSD is religiously diverse. Students and
families practice, among other beliefs, Judaism, Islam, the
Bahá’í faith, Buddhism, Hinduism, and Zoroastrianism.
6
The Kennedy & Bremerton “Relationship”
BSD employed Kennedy as a football coach at Bremerton High
School from 2008 to 2015. Kennedy served as an assistant
coach for the varsity football team and also as the head coach
for the junior varsity football team. Kennedy’s contract expired

at the end of each football season. It provided that BSD
“entrusted” Kennedy “to be a coach, mentor and role model for
the student athletes.” Kennedy further agreed to “exhibit
sportsmanlike conduct at all times,” and acknowledged that, as
a football coach, he was “constantly being observed by others.”
7
Kennedy’s Job Description
Kennedy’s formal job description required him to assist the
head coach with “supervisory responsibilities,” “[a]dhere to
Bremerton School District policies and administrative
regulations,” “communicate effectively” with parents, “maintain
positive media relations,” and “[o]bey all the Rules of Conduct
before players and the public as expected of a Head Coach,”
including the requirement to “use proper conduct before the
public and players at all times.” Consistent with his
responsibility to serve as a role model, Kennedy’s contract
required that, “[a]bove all” else, Kennedy would endeavor not
only “to create good athletes,” but also “good human beings.”
8
Kennedy’s Religious Beliefs
and Past Practices (1)
Kennedy is a practicing Christian. Between 2008 and 2015, he
led students and coaching staff in a locker-room prayer prior to
most games. He also participated in prayers that took place in
the locker room after the games had ended. Kennedy insists
these activities predated his involvement with the program and
were engaged in as a matter of school tradition. His religious
beliefs do not require him to lead any prayer before or after
BHS football games.
9

Kennedy’s religious beliefs do require him to give thanks
through prayer at the end of each game for the players’
accomplishments and the opportunity to be a part of their lives
through football. Specifically, “[a]fter the game is over, and
after the players and coaches from both teams have met to shake
hands at midfield,” Kennedy feels called to “take a knee at the
50-yard line and offer a brief, quiet prayer of thanksgiving for
player safety, sportsmanship, and spirited competition.”
Kennedy’s prayer usually lasts about thirty seconds. He wears a
shirt or jacket bearing a BHS logo when he prays at midfield.
Because his “prayer lifts up the players and recognizes their
hard work and sportsmanship during the game,” Kennedy’s
religious beliefs require him to pray on the actual field where
the game was played.
10
Kennedy began performing these prayers when he first started
working at BHS (2008). At the outset, he prayed alone.
Several games into his first season, however, a group of BHS
players asked Kennedy whether they could join him. “This is a
free country,” Kennedy replied, “You can do what you want.”
Hearing that response, the students elected to join him. Over
time, the group grew to include the majority of the team.
Sometimes the BHS players even invited the opposing team to
join.
11
Eventually, Kennedy’s religious practice evolved to something

more than his original prayer. He began giving short
motivational speeches at midfield after the games. Students,
coaches, and other attendees from both teams were invited to
participate. During the speeches, the participants kneeled
around Kennedy, who raised a helmet from each team and
delivered a message containing religious content. Kennedy
subsequently acknowledged that these motivational speeches
likely constituted prayers.
12
September 17, 2015,
Letter from BSD to Kennedy
The District first learned that Kennedy was leading locker-room
prayers and praying on the field in September 2015, when an
employee of another school district mentioned the post-game
prayers to a BSD administrator. The discovery prompted an
inquiry into whether Kennedy was complying with the school
board’s policy on “Religious-Related Activities and Practices.”
Pursuant to that policy, “[a]s a matter of individual liberty, a
student may of his/her own volition engage in private, non-
disruptive prayer at any time not in conflict with learning
activities.” In addition, “[s]chool staff shall neither encourage
nor discourage a student from engaging in non-disruptive oral
or silent prayer or any other form of devotional activity.”
13
Kennedy is Cooperative
Kennedy was candid and cooperative throughout the District’s
inquiry. The investigation revealed that coaching staff had
received little training regarding the District’s policy.
Accordingly, BSD Superintendent Aaron Leavell sent Kennedy
a letter on September 17, 2015, to clarify the District’s
prospective expectations.
14

Problematic Practices
Leavell explained that Kennedy’s two practices were
“problematic” under the Establishment Clause, but he
acknowledged that they were well-intentioned and that Kennedy
had “not actively encouraged, or required, [student]
participation.” Leavell advised Kennedy that he could continue
to give inspirational talks, but “[t]hey must remain entirely
secular in nature, so as to avoid alienation of any team
member.” He further advised that “[s]tudent religious activity
must be entirely and genuinely student-initiated, and may not be
suggested, encouraged (or discouraged), or supervised by any
District staff.” Leavell further counseled Kennedy that “[i]f
students engage in religious activity, school staff may not take
any action likely to be perceived by a reasonable observer, who
is aware of the history and context of such activity at BHS, as
endorsement of that activity.”
15
Point of Emphasis
Lastly, Leavell stressed that Kennedy was
“free to engage in religious activity, including prayer, so long
as it does not interfere with job responsibilities. Such activity
must be physically separate from any student activity, and
students may not be allowed to join such activity. In order to
avoid the perception of endorsement discussed above, such
activity should either be non-demonstrative (i.e., not outwardly
discernible as religious activity) if students are also engaged in
religious conduct, or it should occur while students are not
engaging in such conduct.”
16
Kennedy Apparently Complies

Kennedy temporarily stopped praying on the field while
students were around. Instead, after the September 18th game,
Kennedy gave a short motivational speech “that included no
mention of religion or faith.” Then, once “everyone else had left
the stadium,” he walked to the fifty-yard line, knelt, and prayed
alone.
17
Kennedy Responds in October 14th Letter
He requested a religious accommodation under the Civil Rights
Act of 1964 that would allow him to “continue his practice of
saying a private, post-game prayer at the 50-yard line”
immediately following BHS football games. The letter opined
that Kennedy’s religious expression occurred during “non-
instructional hours” because, according to Kennedy, “his
official coaching duties ceased” after the games had ended. The
letter also acknowledged that Kennedy’s prayers were
“audibl[e],” but stressed that “he does not pray in the name of a
specific religion,” and “neither requests, encourages, nor
discourages students from participating in” his prayer. Lastly,
the letter announced that Kennedy would resume praying on the
fifty-yard line at the October 16, 2015, game.
Kennedy’s intention to pray on the field following the October
16th game “was widely publicized, including through
[Kennedy’s] own media appearances.” On the day of the game,
the District had not yet responded to Kennedy’s letter, but
Kennedy nonetheless proceeded as he had indicated.
18
October 16, 2015
Once the final whistle blew, Kennedy shook hands with the
opposing team and waited until most of the BHS players were
singing the fight song to the audience in the stands. Then, he
knelt on the fifty-yard line, bowed his head, closed his eyes,

“and prayed a brief, silent prayer.” According to Kennedy,
while he was kneeling with his eyes closed, “coaches and
players from the opposing team, as well as members of the
general public and media, spontaneously joined [him] on the
field and knelt beside [him].” In the days after the game,
pictures were “published in various media” depicting Kennedy
praying while surrounded by players and members of the public.
19
The New Complaint
The District maintains that while Kennedy was walking to the
fifty-yard line, “[t]here were people jumping the fence and
others running among the cheerleaders, band[,] and players.”
Afterwards, “the District received complaints from parents of
band members who were knocked over in the rush of spectators
on to the field.” Sometime after the game, members of a
Satanist religion contacted the District and said they “intended
to conduct ceremonies on the field after football games if others
were allowed to.” Ultimately, the District made arrangements
with the Bremerton Police Department to secure the field after
games, then posted signs, made “robocalls” to District parents,
and “otherwise put the word out to the public that there would
be no [future] access to the field.” Representatives of the
Satanist religion showed up at the next game, “but they did not
enter the stands or go on the field after learning that the field
would be secured.”
20
October 23, 2015
Leavell sent Kennedy a second letter on October 23, 2015. He
thanked Kennedy for his “efforts to comply with the September
17 directives.” Still, he explained that Kennedy’s conduct at
the game on October 16th was inconsistent with the District’s
requirements. Leavell emphasized “that the District does not

prohibit prayer or other religious exercise by employees while
on the job,” but “such exercise must not interfere with the
performance of job responsibilities, and must not lead to a
perception of District endorsement of religion.”
21
In the Letter
According to the District, Kennedy had not met those
requirements because “paid assistant coaches in District athletic
programs are responsible for supervision of students not only
prior to and during the course of games, but also during the
activities following games and until players are released to their
parents or otherwise allowed to leave.” (emphasis added). The
District confirmed with Kennedy’s head coach “that for over ten
years, all assistant coaches have had assigned duties both before
and after each game and have been expected to remain with the
team until the last student has left the event.” Thus, the District
told Kennedy (see the next slide)
22
Long Quote From the Letter
“[W]hen you engaged in religious exercise immediately
following the game on October 16, you were still on duty for
the District. You were at the event, and on the field, under the
game lights, in BHS-logoed attire, in front of an audience of
event attendees, solely by virtue of your employment by the
District. The field is not an open forum to which members of
the public are invited following completion of games; but even
if it were, you continued to have job responsibilities, including
the supervision of players. While [BSD] understand[s] that your
religious exercise was fleeting, it nevertheless drew you away
from your work. More importantly, any reasonable observer
saw a District employee, on the field only by virtue of his
employment with the District, still on duty, under the bright

lights of the stadium, engaged in what was clearly, given your
prior public conduct, overtly religious conduct.”
23
District Persists
The District reiterated that it “can and will” accommodate
“religious exercise that would not be perceived as District
endorsement, and which does not otherwise interfere with the
performance of job duties.” To that end, it suggested that “a
private location within the school building, athletic facility or
press box could be made available to [Kennedy] for brief
religious exercise before and after games.” Kennedy, of course,
could also resume his prior practice of praying on the fifty-yard
line after the stadium had emptied. Because the “[d]evelopment
of accommodations is an interactive process,” the District
invited Kennedy to offer his own suggestions. The District also
reminded Kennedy that “[w]hile on duty for the District as an
assistant coach, you may not engage in demonstrative religious
activity, readily observable to (if not intended to be observed
by) students and the attending public.”
24
Kennedy Continues Praying on the
Fifty-Yard Line
Kennedy’s legal representatives responded to the District’s
letter by informing the media that the only acceptable outcome
would be for the District to permit Kennedy to pray on the fifty-
yard line immediately after games [Kennedy contended that the
District’s accommodations were inadequate because “BSD did
not explain how [his] religious expression would be
accommodated at away games,” where BSD does not have direct
control over the facilities.] Kennedy’s conduct bore that out.
He prayed on the fifty-yard line immediately after a Varsity
game on October 23rd, and once again after a JV game on

October 26th.
25
October 28th Letter
The District subsequently notified Kennedy by letter that he had
violated the District’s directives and would be placed on paid
administrative leave from his position as an assistant coach.
The District also publicly-released a document entitled
“Bremerton School District Statement and Q&A Regarding
Assistant Football Coach Joe Kennedy,” which detailed the
history of the District’s interactions with Kennedy and
explained its views regarding the constitutionality of Kennedy’s
conduct.
While Kennedy was on leave, he was not allowed to participate
in BHS football program activities. Kennedy could still attend
the games in his capacity as a member of the public. At the
October 30, 2015, game, which Kennedy attended as a member
of the public, Kennedy prayed in the bleachers while wearing
his BHS apparel, surrounded by others, and with news cameras
recording his actions.
26
Kennedy’s Job Evaluation
After the season ended, the District began its annual process of
providing its coaches with performance reviews. This starts
with written evaluations by the head coach and the school’s
athletic director. The assistant coach then typically meets with
one of those two people to go over his performance evaluation.
If the coach is unsatisfied with the head coach or athletic
director’s evaluation, he can involve the school principal or the
District. Kennedy had previously participated in this review—
and had received uniformly positive evaluations—but he did not
participate in 2015. The athletic director recommended that
Kennedy not be rehired because Kennedy “failed to follow

district policy” and “failed to supervise student-athletes after
games due to his interactions with [the] media and [the]
community.”
The head coach of the varsity football team left the job at the
conclusion of the 2015 season. The one-year contracts also
expired for all six of the assistant football coaches. The
District therefore opened up to application all seven of the
football coaching positions. Kennedy did not apply for a
coaching position during the 2016 season.
27
Kennedy Files Suit
Kennedy commenced this action in the Western District of
Washington on August 9, 2016. He asserted that his rights
under the First Amendment and Title VII of the Civil Rights Act
of 1964 were violated. Kennedy moved for a preliminary
injunction on August 24, 2016, arguing that he would succeed
on the merits of his claim that BSD retaliated against him for
exercising his First Amendment right to free speech. Kennedy
sought an injunction ordering BSD to (1) cease discriminating
against him in violation of the First Amendment, (2) reinstate
him as a BHS football coach, and (3) allow him to kneel and
pray on the fifty-yard line immediately after BHS football
games.
28
Kennedy’s Claim
Kennedy brought his First Amendment retaliation claim
pursuant to 42 U.S.C. § 1983. The First Amendment applies
against the State pursuant to the Fourteenth Amendment. See
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n.1
(1995) (“The term ‘liberty’ in the Fourteenth Amendment to the
Constitution makes the First Amendment applicable to the
States.”).

29
Conclusion
of The U.S. Court of Appeals for The 9th Circuit
On Friday nights, many cities and towns across America
temporarily shut down while communities gather to watch high
school football games. Students and families from all walks of
life join “to root for a common cause” and admire the young
people who step proudly onto the field. Santa Fe Ind. Sch. Dist.
v. Doe, 530 U.S. 290, 312 (2000). While we “recognize the
important role that public worship plays in many communities,
as well as the sincere desire to include public prayer as a part of
[these] occasions,” such activity can promote disunity along
religious lines, and risks alienating valued community members
from an environment that must be open and welcoming to all.
Id. at 307. That is why the “preservation and transmission of
religious beliefs and worship is a responsibility and a choice
committed to the private sphere, which itself is promised
freedom to pursue that mission.” Lee v. Weisman, 505 U.S. 577,
589 (1992).
“As for the task at hand, we hold that Kennedy spoke as a
public employee when he kneeled and prayed on the fifty-yard
line immediately after games while in view of students and
parents. Kennedy therefore cannot show a likelihood of success
on the merits of his First Amendment retaliation claim. We
AFFIRM the district court’s order denying Kennedy’s motion
for a preliminary injunction. Appellant shall bear costs on
appeal.” Fed. R. App. P. 39(a)(2).
30

Marcus A. BORDEN v.
SCHOOL DISTRICT OF The TOWNSHIP OF EAST
BRUNSWICK
United States Court of Appeals, Third Circuit
Case No. 06-3890.
Decided: April 15, 2008
1
Initial Plaintiff and Initial Defendants
United States Court of Appeals, Third Circuit
Marcus A. BORDEN v.
School District of the Township of East Brunswick, NJ;
Board of Education of The Township of East Brunswick, NJ;
Dr. Jo Ann Magistro, in her capacity as Superintendent,
of the School District of the Township of East Brunswick,
Appellants (1, 2, & 3 above) of U.S. Federal Court 3rd Circuit
decision
2
Factual History (1983-2005)
Marcus Borden is/was the head football coach at East
Brunswick High School (“EBHS”), and he has held that position
since 1983. During his tenure at EBHS, Borden engaged in two
pre-game prayer activities that occurred (1) [Blessing] at the
team [pre-game] dinner; and (2) [Pre-game] Prayer while taking
a knee in the locker room before each game.
3
Reverend Smith

As part of pre-game activities for the EBHS football team, the
team ate a pasta dinner together at approximately 3:00 p.m. on
game day in the high school cafeteria. In addition to the team,
parents and other guests, including the cheerleading squad, were
present. Prior to the time Borden coached the team ‘til 1997, a
local minister, Reverend Smith, said a pre-meal prayer. In
1997, the athletic director told Borden that Reverend Smith
could not continue the prayer. Instead, Reverend Smith wrote a
prayer that the students took turns reading. Then, in 2003,
Reverend Smith retired, and Borden did not continue having
students read Reverend Smith's prayer.
4
Coach Borden’s New Tradition (2003-2005)
Coach Borden said the prayer prior to the first pre-game dinner
of the 2003, 2004, and 2005 seasons.
For the subsequent weeks of those seasons, Borden asked those
attending the dinner to “please stand,” and chose a senior player
to say a prayer.
In addition to the prayer before the team dinner, Borden led his
team in a prayer immediately before the game. Prior to taking
the field, Borden and his assistant coaches asked the players to
take a knee in the locker room. The team gathered in front of
the chalkboard / dry-erase board on one knee, and at that time,
Borden discussed the tactics and strategy for that particular
game. Following that discussion, Borden led the team prayer.
5
An Example of Borden’s Typical Prayer
“[D]ear lord, please guide us today in our quest / in our game /
in our championship. Give us the courage and determination
that we would need to come out successful. Please let us
represent our families and our community well. Lastly, please
guide our players and opponents so that they can come out of

this game unscathed, [and] no one is hurt.”
The team participated in the tradition for 23 seasons, beginning
when Borden became hade coach of the EBHS football team in
1983 and continuing until the 2005 football season – similar to
the tradition before he became head coach.
6
The First Complaint
On September 26, 2005, Jo Ann Magistro, the Superintendent of
the East Brunswick School District (“School District”), received
a complaint from a parent about the prayer at the team dinner.
The parent told Magistro she thought it was inappropriate that
Borden requested everyone stand for the prayer while he bowed
his head during the prayer. Over the course of that week, two
other parents complained to Magistro about the prayer. One of
the complaining parents had a son on the team, and the parent
told Magistro that her son felt uncomfortable during the prayer
and feared that the coach would select him to say the prayer.
7
More Complaints
Although Magistro did not contact Borden herself, the EBHS
principal and athletic director contacted Borden about these
complaints. They told him not to lead the team in prayer, and
he responded that he did not lead them in prayer. On September
30, 2005, he continued the prayer traditions in the manner
described previously. It was alleged that he told the students
that if they felt uncomfortable during the prayer, they could
wait in the restroom until it was over.
Following that game, Magistro received several more
complaints.
8

School System Lawyer Advice
On October 6, 2005, the School District's counsel, Martin
Pachman, advised Magistro and the East Brunswick Board of
Education (“Board”) regarding Borden's conduct, stating that a
coach for the school could not lead, encourage, or participate in
student prayer. Magistro met with Borden the next day, October
7, 2005, and told him that all prayer needed to be student
initiated, including the selection of which student would recite
the prayer.
At that time, Borden asked her if he could continue to say the
pre-game prayer in the locker room. In response, Magistro
contacted Pachman, who answered Borden's questions. At the
end of the conversation, Magistro asked Pachman to provide
clear guidelines on faculty participation in student prayer.
Later that day, Magistro sent Borden a memorandum and
attached the guidelines provided by Pachman. Magistro stated
that she recognized Borden's disappointment, but she expected
him to comply with the guidelines, and “[n]ot to comply will be
viewed as insubordination.”
9
The Guidelines (1)
“1. Students have a constitutional right to engage in prayer on
school property, at school events, and even during the course of
the school day, provided that:
A. The activity is truly student initiated; and
B. The prayer activity does not interfere with the normal
operations of the school district.
10
The Guidelines (2)

2. Neither the school district nor any representative of the
school district (teacher, coach, administrator, board member,
etc.) may constitutionally encourage, lead, initiate, mandate, or
otherwise coerce, directly or indirectly, student prayer at any
time in any school-sponsored setting, including classes,
practices, pep rallies, team meetings, or athletic events.
11
The Guidelines (3)
3. Representatives of the school district, as referenced above,
cannot participate in student-initiated prayer. That very issue
was decided by the Fifth Circuit Court of Appeals in a decision
cited with approval by the United States Supreme Court and is,
therefore, the operative law of the land at this time. To quote
the Court, ‘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,’ and such conduct was prohibited.”
12
Friday, October 7, 2005
Magistro meets with Coach Borden after school/prior to pre-
game meal (as noted in Slide 09).
Borden goes to cafeteria and informs Offensive and Defensive
Coordinators they will be co-head coaches for the night’s game;
he then goes home and sends an e-mail resignation to the School
Principal, Athletic Director, and School System Superintendent
– none of whom saw the e-mail until Saturday morning (but
those at the game wondered why Borden was not present?).
13

October 17, 2005
Borden withdrew his resignation and agreed to abide by the
School District's policy for the remainder of the 2005 season.
14
October 20, 2005
Board Education Meeting (1)
Michael Baker, the president of the Board, read a prepared
statement (“the Board's statement”).
Paragraph 1
“I want to take this opportunity on behalf of the Board of
Education, to make some remarks regarding the events that have
transpired with our football coach. First and foremost, Dr.
Magistro has acted professionally, appropriately and
respectfully. She has represented the district and the Board of
Education with dignity and class. We sincerely thank her and
appreciate the way she has conducted herself. We have
instructed Dr. Magistro to get on with running the district and
to defer any continuing distractions in this matter to our
attorney, Mr. Pachman[,] or to the Board of Education.
15
October 20, 2005
Board Education Meeting (2)
Paragraph 2
Coach Borden, after reconsidering his decision, has rescinded
his resignation and continues as coach of the team. He will
conduct himself in a manner that is in compliance with the law.
We do not believe that there was any deliberate attempt or
motive from him to do otherwise. We respect the rights of any
employee to disagree with policies, procedures and legal
interpretations, but cannot and will not tolerate violations of
these rules by any employee of the district. Each of us up here,

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