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![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
information to protect confidentiality.
Ivey Management Services prohibits any form of reproduction,
storage or transmittal without its written permission.
Reproduction of
this material is not covered under authorization by any
reproduction rights organization. To order copies or request
permission to
reproduce materials, contact Ivey Publishing, Ivey Management
Services, c/o Richard Ivey School of Business, The University
of
Western Ontario, London, Ontario, Canada, N6A 3K7; phone
(519) 661-3208; fax (519) 661-3882; e-mail [email protected]](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-1-2048.jpg)
![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.”](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-29-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-30-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-42-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-47-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-54-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-57-2048.jpg)
![Kennedy’s Religious Beliefs
and Past Practices (2)
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’s Religious Beliefs
and Past Practices (3)
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
Kennedy’s Religious Beliefs
and Past Practices (4)
Eventually, Kennedy’s religious practice evolved to something](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-58-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-59-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-60-2048.jpg)
![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,](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-61-2048.jpg)
![“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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-62-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-63-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-64-2048.jpg)
![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.”).](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-66-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-67-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-68-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-69-2048.jpg)
![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](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-70-2048.jpg)
![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)](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-71-2048.jpg)
![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,](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-73-2048.jpg)
![are elected to serve this community and take an oath of office to
respect and defend the Constitution of the United States and
there is no ambiguity or gray area for us in understanding this
oath. We will, whenever confronted, follow the laws of our
land regardless of personal views or interpretations of these
laws. Our employees will do the same. It is our
uncompromising expectation that Coach Borden's personal
agenda along with his lawyer[']s, does not in any way interfere
with this school district. The Board of Education will continue
to see that our schools run at the highest of standards and with
complete respect for the law and for the rights of all of our
students and staff. Any comments that come from sources other
than the Board of Education, our counsel or the Superintendent
are not official and therefore not necessarily representative of
our position.
16
October 20, 2005
Board Education Meeting (3)
Paragraph 3
We are a divided nation and have been since the ratification of
our Constitution in 1791. Issues of faith are personal and
divisive today as they were back then. This meeting and
subsequent [Board of Education] meetings are not the forum for
such debate, and legal [c]onstitutional rulings are not the
purview of the Board of Education. Congress, the President and
the Supreme Court make, enforce and interpret the laws and
these branches of [g]overnment are the appropriate places to
lobby for one's position on these matters, not here. This is not a
platform for individual agendas on [c]onstitutional cases that
have already been clearly decided. I will therefore preside over
this meeting this evening with these thoughts in mind.
17](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-74-2048.jpg)
![October 20, 2005
Board Education Meeting (4)
Paragraph 4
One of the foundations of our democracy is that the right of
someone to express concern or to bring a matter of discomfort
to the attention of authority is to be respected and protected. It
is not to be vilified and dishonored. Some of the extreme
language, hateful emails and inappropriate and inaccurate
reporting of this story, has shifted blame onto the blameless and
has distorted beyond measure the matter at hand. If we can do
one thing together as a community, it should be to stand up in
vast numbers and express outrage and concern against those
who would cheapen the actions of brave and committed
Americans. No person should have to be afraid to express their
constitutionally protected individual rights. Hopefully, we can
all learn from this experience and move forward with dignity
and respect for each other. Thank you.”
18
November 21, 2005
Following the issuance of the October 7 guidelines and the
Board's statement on October 20, Borden conducted himself in
accordance with the School District's new policy for the balance
of the school year, notwithstanding the litigation [legal case] he
instituted on November 21, 2005.
19
Fall 2006 - Fall 2007
Prior to the 2006 football season, Borden sent an email to
Sergio Garcia and Randall Nixon, the co-captains of the team
for the 2006 season, requesting that they ask the players
whether they would like to continue the tradition of praying at
the team dinner and prior to the game. In his email request, he
told the co-captains that “[w]hatever the players decide to do is](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-75-2048.jpg)
![he was not asserting a claim under the Free Exercise Clause
despite his citation of paragraph 4 of the New Jersey
Constitution in his complaint. Borden argued that “his 1st and
14th Amendment U.S. constitutional rights as well as Article 1
¶¶ 1, 6 of his New Jersey constitutional rights” protect his
“symbolic conduct.” Further, Borden argued that the School
District's justification for its policy was based on an erroneous
interpretation of the Establishment Clause.
22
July 26, 2006
The District Court entered an order denying defendants' motion
for summary judgment, granting Borden's cross-motion for
summary judgment - awarding Borden costs and counsel fees.
The defendants' timely appeal followed.
Ruling
The District Court had jurisdiction over this case pursuant to 28
U.S.C. §§ 1331 and 1367(a). We have jurisdiction over final
judgments of the District Court under 28 U.S.C. § 1291.6 We
exercise plenary review over a district court's grant of summary
judgment, and will uphold the district court's grant of a
summary judgment motion on any basis so long as that basis
was previously presented to the district court. Nasir v. Morgan,
350 F.3d 366, 368 (3d Cir.2003). Moreover, “[o]ur review over
constitutional issues is plenary.” United States v. One Toshiba
Color Television, 213 F.3d 147, 151 (3d Cir.2000).
The District Court found that the School District's policy
prohibiting faculty participation in student-initiated prayer was
unconstitutional on its face because it was both overbroad and
vague. It also found that the policy was unconstitutional in its
application to Borden because it violated Borden's
constitutional rights to freedom of speech, academic freedom,
freedom of association, and due process. Finally, it found that
Borden's requested silent acts of bowing his head and taking a
knee while his team prayed would not violate the Establishment](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-77-2048.jpg)
![(1984), Lee (1992), Santa Fe (2000)
27
Relevant Binding Cases to Borden
Engel v. Vitale, 370 U.S. 421 (1962) - A New York State law
required public schools to open each day with the Pledge of
Allegiance and a nondenominational prayer in which the
students recognized their dependence upon God. The law
allowed students to absent themselves from this activity if they
found it objectionable. A parent sued on behalf of his child,
arguing that the law violated the Establishment Clause of the
1st Amendment, as made applicable to the states through the
Due Process Clause of the 14th Amendment.
Issue - Whether school-sponsored nondenominational prayer in
public schools violates the Establishment Clause of the 1st
Amendment. Ruling - Yes (6-1) School-initiated prayer
violates 1st Amendment
The Lemon Test – Lemon v. Kurtzman [403 U.S. 602, 612-13
(1971)]
The Endorsement Test – Lynch v. Donnelly [465 U.S. 668, 687-
694 (1984]
The Coercion Test – Lee v. Weisman [505 U.S. 577 (1992)]
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].
28](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-80-2048.jpg)
![by Dr. Conkle; and, there are too many lessons involved for
that, so issues will be handled individually. Besides,
individual concepts stick better when students can apply them
practically.
Similarly, rather than teaching grammar in isolation, students in
Dr. Conkle’s course are generally applying their
grammar lessons from P-12 schooling to an “advanced” writing
assignment. It is a matter of diligently reinforcing concepts by
ensuring students follow conventions of good writing. At this
point, there should be no excuse for errors like comma splices,
incomplete sentences, homophone confusion, and using the
“almost right word.”
Other Hints
How to Avoid Colloquial (Informal) Writing
Although it may be acceptable in e-mails or chat rooms, a major
pitfall that has ruined the quality of formal, writing is using
excessive colloquialism. Understand that “Formal Writing is
anUn-Natural Act.” Here are some steps/tips to help improve
writing.
1]Know the meaning of colloquialism. This can best be
described as "writing in the way that one would speak." It is
an informal, slang style of English that should be reserved
primarily for speech, as it can seem unprofessional
and sloppy in written text. A casual tone can be interpreted
positively in person with face-to-face contact; but,
it can be perceived negatively in writing.
2] Understand basic English punctuation. This might seem
obvious, but when people speak, they usually disregard
certain rules that are mandatory in writing. For example, one
usually omits pauses when speaking that are
required in formal writing, which are usually denoted by
commas (or set apart within parentheses).
3] Avoid using common colloquial words/expressions, as listed](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-87-2048.jpg)
![below. Again, these are words that, although
acceptable in speech, should not be used in formal writing.
4] Avoid using "filler" or “waste” words. These words are not
necessary and should be removed
(some examples shown below).
· Basically – At best, it can be used to begin a sentence, but
there are better choices available to replace the word, if it is not
omitted entirely. (e.g., "A microphone is basically a device that
is used to record sound.")
· Even – Often, this word is found as an "additive" to a series,
as in the following example, but is generally not needed. (e.g.,
"The basket contained eggs, sandwiches, and even utensils.")
· Just – When used in the same context as BASICALLY, this is
another overused filler word that one should omit.
(e.g., "When pouring the solution, just be certain not to spill its
contents.")
· Well – Generally used to begin a sentence following a
question. (e.g., "Why is global warming a problem? Well, one
major issue is the...")
5] Avoid contractions. When writing formal papers, write-out
contractions. In all collegiate writing it should be
presumed that assignments must be written formally and that
contractions (that are not part of some “landmark” or
“imperative” quote) should not be used unless the professor
specifies that contractions are okay.
6] Limit using subjective pronouns. If writing formally and/or
objectively, avoid using the words "I," "me," "you,"
“us,” and "we." To avoid this, try writing from the third-person
(generic) perspective. Naturally, formal
business letters are an exception.](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-88-2048.jpg)
![7] Avoid splitting infinitives. An infinitive is a verb preceded
by the word "to," such as "to go" or "to want.
When writing, keep infinitives together, rather than separating
them with other words. For example, substitute
"He tried to not sneeze in the library, but failed" with "He tried
not to sneeze in the library, but failed."
8] Avoid ending your sentences with a preposition. In most
cases, it is inappropriate to end a sentence with a
preposition [i.e., down, during, in, into, of, since]. For
example, replace "What is the bag filled with?" with
"What is inside the bag?"
An exception is when the preposition fills the role of an
adverb (which may answer the question “where?”
9] Avoid clichés. Clichés are phrases that have been exhausted
to the point where they have completely lost originality.
o Hercules was as strong as an ox.
o I give an arm and a leg to find a parking spot when I shop
during the holiday season.
o There are loads of websites on the Internet.
10] William Shakespeare, in Hamlet, has misled the masses by
stating “to be, or not to be, that is the question.”
There is almost no situation where “to be” is correct, or other
“to be verbs,” and cannot be stated in some
better way with “strong(er) verbs.](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-89-2048.jpg)
![Other Random Writing Tips from Dr. Conkle
(used with dry humor, and some sarcasm, added)
01] From Mark Twain (in a letter 10-15-1888): “The
difference between the right word and the almost right word
is the difference between
lightning and the lightning bug.”
Did “Bunky” throw a pebble, rock, or boulder at the side of his
dad's barn? The point is, use a good Dictionary, not a
Thesaurus. Broaden your vocabulary, so Twain can be supine in
the grave and not prone.
Which option below is most precise (it does depend on the
situation as it occurred)? They do have different dictionary
definitions!
Did John ride a ___ at the carnival? {horse / mule / donkey /
burro / mare / stallion / bronco / zebra}
02] From Day, R. A. (1994). How to write & publish a
scientific paper (4th ed.) Phoenix, AZ: Oryx Press
· Each pronoun should agree with their antecedent.
· Just between you and I, case is important.
· A preposition is a poor word to end a sentence with.
· Verbs has to agree with their subject.
· Don't use no double negatives.
· Remember to never split an infinitive.](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-90-2048.jpg)
![· Avoid clichés like the plague.
· Join clauses good, like a conjunction should.
· Do not use hyperbole, not one writer in a million can use it
effectively.
· About sentence fragments.
03] Use Standard English.
04] Be brief and concise when doing “professional writing,”
while using as much detail as possible.
Be flowery with papers for an English class, not a professional
course. Grammar check will typically discourage using many
adverbs that are not necessarily necessary (erroneous humor
intended).
05] Do not use contractions in formal papers, unless they are
part of quoted material – unless otherwise specified every
assignment/paper for Dr. Conkle is a formal paper. YES,
this has already been stated!
06] Spell (fully) single-digit numbers, use numerals for
multiple-digit numbers (except when beginning sentences –
APA)
With standard units of measure, it is okay to use a single-
digit number.
07] Do not use gender-biased wording, when writing generally,
do not be tempted to write in the masculine perspective.
And, know that “gender” is the preferred word, as opposed
to “sex,” when discussing males, females. Be general
or generic when possible (e.g., they, their).
08] Already stated, but there is almost no situation where “to
be...” is appropriate or could not be said better with other
wording, for example:
“Faculty members are scheduled to be at a meeting on the
first Monday of each month.”
“Faculty members meet the first Monday of each month.”
“Everyone wanted Carol to be captain of the team.”
“Everyone wanted Carol as team captain.”
09] Use “that,” “which,” “who,” and “whom” appropriately.](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-91-2048.jpg)
![10] e.g., = for example; and, i.e., = that is
11] Use a passive 3rd-person voice when reporting facts, state
things matter-of-factly; use an active
(1st- and/or 2nd-person) voice when communicating how the
facts relate to you, and/or, your past, present,
or future. For consistency, use plural writing when speaking
globally or universally and not of a single or
specific entity.
12] Avoid “Widows” and “Orphans” in your documents.
“Widows” are single lines of type left at the top of a page, and
“Orphans” are single lines of type left at the bottom of a
page. Adjust your paragraphs accordingly.
13] Use “spell check” and “grammar check” on your computer
– proof-read everything multiple times, and have
another trusted person proof-read your work for clarity and
understanding (you will eventually get tunnel-vision).
14] Space twice after each end-punctuation, making papers
more reader-friendly.
15] Avoid using “in order to”.....the initial two words are
waste-words in practically all cases, adding nothing to clarity.
For example: “In order to prevent confusion, I have
drafted this help-sheet.”
“To prevent confusion, I have drafted this help-
sheet.”
16] Use “rather than,” and avoid “instead of.”
17] “Include,” “including” or “includes” is usually a better
word choice than “comprised of” or “consists of.”
For example: “This help-sheet includes several
suggestions.”
“This help-sheet consists of several
suggestions.”
“This help-sheet is comprised of several
suggestions.”
18] Know the appropriate places to use commas, semi-colons,
hyphens, and parentheses.
19] Know that “a,” “an,” and “the” imply number(s) and can be](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-92-2048.jpg)
![interpreted quite literally.
20] Determine the most accurate and concise wording and use
it. For example:
“Young women and men wishing to attend college should
learn about various institutions before
applying to them.”
“Prospective college students should research each
institution before applying.”
21] Avoid infinitive phrases (to + a verb, although correct)
when possible, they often waste character spaces.
Gerunds are preferred over infinitives (e.g., swimming, to
swim; dreaming, to dream; telling, to tell; etc.)
Example: “Phil agreed to give me a ride to the store.”
“Phil gave me a ride to the store.”
22] Know when to use “although,” “whereas,” and “while.”
When a time relationship exists, use “while;” otherwise,
“although” or “whereas” convey the thought. Also, use
“although” as opposed to “even though.”
23] Use present tense to communicate facts already published
(key points from an article),
indicating existent knowledge.
24] Limit the use of prepositions, for clarity; but, when they
are used, use them in correct context, avoid redundancy.
Example:
“The enrollment of students in universities in America is
growing to the point that professors have to explore
new methods to teach and to grade papers.”
“Student enrollment in American universities has grown so
much that professors must explore new teaching and
paper-grading methods.”
25] Although technically both are correct, use “toward” rather
than “towards” - do not waste the character space.
26] Rather than using “about,” use “concerning” or “regarding”
- they are so much cleaner. Or, consider re-wording in
the most concise way. Example:
“Students were engaged in a discussion about college](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-93-2048.jpg)
![football commercialism at the party.”
“Students had a discussion concerning college football
commercialism at the party.”
“Students had a discussion regarding college football
commercialism at the party.”
“Students discussed college football commercialism at the
party.”
27] Consult a “Writing Lab” or get a “Tutor” if you have
persistent problems on papers.
28] Do not use “and/or” in papers, one or the other is most
correct given the context in which it is used.
29] Consult an APA Publication Manual for guidance in your
writing!!!!!
30] By definition “whether” compares 2 or more concepts, do
not use “whether” with “not” afterward – “not” is implied
if there are no comparatives in a sentence.
Example: Incorrect – Bunky was not sure whether or
not he would attend the game.
Correct – Bunky was not sure whether he would
attend the game.
Correct – Bunky was not sure whether he would
attend the game, stay home, or see a movie.
31] Avoid saying “based off of.” Primarily it makes no sense;
but, even if it did, it wastes words. It is correct to say,
“based” “founded,” “established,” “initiated,”
“originated,” etc. by/on/for – depending on context.
32] “Prove” / “Proof” - be aware that research deals with
statistical probabilities; thus, findings or results do NOT prove
things.
33]Avoid “Colloquial Writing.”
Other Examples of Colloquial Words & Expressions](https://image.slidesharecdn.com/sw909e24engrochemicalspakistanlimited-230125130326-460ca64c/75/S-w-909E24-ENGRO-CHEMICALS-PAKISTAN-LIMITED-docx-94-2048.jpg)
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- 1. S w 909E24 ENGRO CHEMICALSPAKISTAN 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 information to protect confidentiality. Ivey Management Services prohibits any form of reproduction, storage or transmittal without its written permission. Reproduction of this material is not covered under authorization by any reproduction rights organization. To order copies or request permission to reproduce materials, contact Ivey Publishing, Ivey Management Services, c/o Richard Ivey School of Business, The University of Western Ontario, London, Ontario, Canada, N6A 3K7; phone (519) 661-3208; fax (519) 661-3882; e-mail [email protected]
- 2. 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
- 3. would require thatthe 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
- 4. not be affectedby 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
- 5. review of themain 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
- 6. leader in industrialautomation 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. 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 3 9B09E024 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.
- 7. Engro was publicallylisted 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.
- 8. 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. 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 4 9B09E024 Management Committee: This committee was responsible for
- 9. reviewing and endorsinglong-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
- 10. the controls wereeffective. 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 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.
- 11. Page 5 9B09E024 itsown 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
- 12. technology with theISP 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
- 13. arrive at thecross-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. 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 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
- 14. DSL-based virtual privatenetwork (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
- 15. automatically replicated tothe 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; 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 7 9B09E024 • Asset management; • Payroll processing (all Engro employees);
- 16. • Compensation andbenefit 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.
- 17. DISASTER RECOVERY PLAN Asthe 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. This document is authorized for use only by Phenekia Morgan
- 18. in WMBA-6030-1/WMBA-6030B-1-Managing BusinessInfo Syst2020 Summer Sem 05/04-08/23-PT2 at Laureate Education - Walden University, 2020. 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
- 19. servers, wireless LAN/WAN, uninterruptiblepower 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
- 20. this had tobe 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. 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 9 9B09E024 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
- 21. The external auditorswere 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.
- 22. The company foundthe 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
- 23. would be destroyed,the company activated its DRP, which was developed by the IT section in 2005. 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 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
- 24. The 1st Amendmentof 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
- 25. American citizens toaccept 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. 5 6 The Conflict, Explained Further
- 26. Historically, the SupremeCourt 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.” 6 7 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. 7 8 The Establishment Clause Test (1947) He stated the majority opinion, and itemized the meaning of the “establishment of religion clause”:
- 27. Neither a statenor 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. 8 9 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
- 28. 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.”
- 29. 11 12 The Endorsement Test Lynchv. 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.”
- 30. 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
- 31. 16 “Unconstitutional Prayer andReligion” 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
- 32. 18 Unwarranted Search andSeizure? 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
- 33. modest ranch houseon 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
- 34. HIPAA The federal HealthInsurance 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
- 35. entities, and somethat 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’
- 36. medical records areincreasingly 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
- 37. 27 How FERPA andHIPAA 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.
- 38. Lawsuits occur inthe 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 (Deals with Federal Law) 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
- 39. of American citizensto 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”
- 40. 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.
- 41. 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 (Deals with Federal Law) Gender Equity (Deals with Federal Law) Negligence & Legal Duties (Legal Duties typically stem from Binding Precedents or Persuasive Precedents) Hazing The 3 Tests Court Tests that as Religion in School Case Must Pass: The Lemon Test
- 42. 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
- 43. IX does notrequire 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
- 44. Hazing often prosecutedas: · 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
- 45. 1st Amendment (Deals withFederal Law) Gender Equity (Deals with Federal Law) Negligence & Legal Duties (Legal Duties typically stem from Binding Precedents or Persuasive Precedents) 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?
- 46. All educational programsand 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
- 47. affirm the school’scommitment 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
- 48. The more ofthese 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 (Deals with Federal Law) Gender Equity (Deals with Federal Law) Negligence & Legal Duties (Legal Duties typically stem from Binding Precedents or Persuasive Precedents) 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.
- 49. It applies toany 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),
- 50. which means “standby 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
- 51. precedent; however, anydecision 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
- 52. That state’s stateappeals 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 That state’s highest court All federal courts Other states’ state courts State trial courts in the same state Other state courts of appeals in the same state State issue in state’s highest court That state’s highest court All federal courts Other states’ state 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 All federal district courts All federal circuit courts State courts Federal issue in state supreme court US Supreme Court All federal district courts All federal circuit courts State courts State issue in federal district court Interpretations from the state’s highest court All federal courts Other state courts
- 53. State issue infederal circuit court Interpretations from the state’s highest court All federal courts Other state courts State issue in U.S. Supreme Court Interpretations from the state’s highest court All federal courts Other state courts Federal issue in federal district court US Supreme Court Federal circuit court in the circuit where the district court is Other federal circuit courts Other federal district courts All state courts Federal issue in federal circuit court That federal circuit court US Supreme Court Other federal circuit courts Other federal district courts All state courts Federal issue in US Supreme Court US Supreme Court All federal circuit courts All federal district courts All state courts
- 54. Bremerton (WA) SchoolDistrict 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
- 55. The Issues Issue: Whetherpublic 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
- 56. reasons given inhis 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
- 57. at the endof 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
- 58. Kennedy’s Religious Beliefs andPast Practices (2) 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’s Religious Beliefs and Past Practices (3) 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 Kennedy’s Religious Beliefs and Past Practices (4) Eventually, Kennedy’s religious practice evolved to something
- 59. more than hisoriginal 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
- 60. Problematic Practices Leavell explainedthat 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
- 61. Kennedy temporarily stoppedpraying 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,
- 62. “and prayed abrief, 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
- 63. prohibit prayer orother 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
- 64. lights of thestadium, 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
- 65. October 26th. 25 October 28thLetter 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
- 66. 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.”).
- 67. 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
- 68. Marcus A. BORDENv. 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
- 69. As part ofpre-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
- 70. 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
- 71. School System LawyerAdvice 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)
- 72. 2. Neither theschool 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
- 73. October 17, 2005 Bordenwithdrew 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,
- 74. are elected toserve this community and take an oath of office to respect and defend the Constitution of the United States and there is no ambiguity or gray area for us in understanding this oath. We will, whenever confronted, follow the laws of our land regardless of personal views or interpretations of these laws. Our employees will do the same. It is our uncompromising expectation that Coach Borden's personal agenda along with his lawyer[']s, does not in any way interfere with this school district. The Board of Education will continue to see that our schools run at the highest of standards and with complete respect for the law and for the rights of all of our students and staff. Any comments that come from sources other than the Board of Education, our counsel or the Superintendent are not official and therefore not necessarily representative of our position. 16 October 20, 2005 Board Education Meeting (3) Paragraph 3 We are a divided nation and have been since the ratification of our Constitution in 1791. Issues of faith are personal and divisive today as they were back then. This meeting and subsequent [Board of Education] meetings are not the forum for such debate, and legal [c]onstitutional rulings are not the purview of the Board of Education. Congress, the President and the Supreme Court make, enforce and interpret the laws and these branches of [g]overnment are the appropriate places to lobby for one's position on these matters, not here. This is not a platform for individual agendas on [c]onstitutional cases that have already been clearly decided. I will therefore preside over this meeting this evening with these thoughts in mind. 17
- 75. October 20, 2005 BoardEducation Meeting (4) Paragraph 4 One of the foundations of our democracy is that the right of someone to express concern or to bring a matter of discomfort to the attention of authority is to be respected and protected. It is not to be vilified and dishonored. Some of the extreme language, hateful emails and inappropriate and inaccurate reporting of this story, has shifted blame onto the blameless and has distorted beyond measure the matter at hand. If we can do one thing together as a community, it should be to stand up in vast numbers and express outrage and concern against those who would cheapen the actions of brave and committed Americans. No person should have to be afraid to express their constitutionally protected individual rights. Hopefully, we can all learn from this experience and move forward with dignity and respect for each other. Thank you.” 18 November 21, 2005 Following the issuance of the October 7 guidelines and the Board's statement on October 20, Borden conducted himself in accordance with the School District's new policy for the balance of the school year, notwithstanding the litigation [legal case] he instituted on November 21, 2005. 19 Fall 2006 - Fall 2007 Prior to the 2006 football season, Borden sent an email to Sergio Garcia and Randall Nixon, the co-captains of the team for the 2006 season, requesting that they ask the players whether they would like to continue the tradition of praying at the team dinner and prior to the game. In his email request, he told the co-captains that “[w]hatever the players decide to do is
- 76. fine with me.”He asked the captains to pass on the players’ collective response and to ensure him that they spoke with ALL of the players on the team. Nixon's response indicated that the players voted to continue both the pre-meal and pre-game prayers. Following the grant of summary judgment in his favor in this case, Borden stood and bowed his head during the prayer before the meal, and remained on one knee during the pre-game prayer. 20 Procedural History On November 21, 2005, Borden instituted litigation against the School District, the Board of Education, and Magistro in her capacity as Superintendent (collectively, “the defendants”) in the Superior Court of New Jersey. The defendants filed to remove the suit to the U.S. District Court for the District of New Jersey on December 22, 2005. Rather than seeking to continue to do what he had done for the previous 23 years, Borden sought “to show his respect for his players, respect for The Team Prayers, and respect for East Brunswick's football tradition by engaging in two silent acts during The Team Prayers: (i) bowing his head during grace; and (ii) taking a knee with his team in the locker room.” His complaint alleged that the guidelines and the Board's statement prevented him from undertaking either of these activities. 21 Summary Judgement Sought by School System The School District filed a motion for summary judgment focusing on whether its policy was proper under 1st Amendment jurisprudence, arguing that it did not violate the Free Exercise Clause, and its policy was necessary because Borden's prayer activities violated the Establishment Clause. Borden filed a cross-motion for summary judgment, and expressly stated that
- 77. he was notasserting a claim under the Free Exercise Clause despite his citation of paragraph 4 of the New Jersey Constitution in his complaint. Borden argued that “his 1st and 14th Amendment U.S. constitutional rights as well as Article 1 ¶¶ 1, 6 of his New Jersey constitutional rights” protect his “symbolic conduct.” Further, Borden argued that the School District's justification for its policy was based on an erroneous interpretation of the Establishment Clause. 22 July 26, 2006 The District Court entered an order denying defendants' motion for summary judgment, granting Borden's cross-motion for summary judgment - awarding Borden costs and counsel fees. The defendants' timely appeal followed. Ruling The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1367(a). We have jurisdiction over final judgments of the District Court under 28 U.S.C. § 1291.6 We exercise plenary review over a district court's grant of summary judgment, and will uphold the district court's grant of a summary judgment motion on any basis so long as that basis was previously presented to the district court. Nasir v. Morgan, 350 F.3d 366, 368 (3d Cir.2003). Moreover, “[o]ur review over constitutional issues is plenary.” United States v. One Toshiba Color Television, 213 F.3d 147, 151 (3d Cir.2000). The District Court found that the School District's policy prohibiting faculty participation in student-initiated prayer was unconstitutional on its face because it was both overbroad and vague. It also found that the policy was unconstitutional in its application to Borden because it violated Borden's constitutional rights to freedom of speech, academic freedom, freedom of association, and due process. Finally, it found that Borden's requested silent acts of bowing his head and taking a knee while his team prayed would not violate the Establishment
- 78. Clause. 23 April 15, 2008 The3rd Circuit U.S. Court of Appeals overturned the lower U.S. District Court ruling, in favor of the initial defendants. The United States Court of Appeals for the Third Circuit has appellate jurisdiction over the U.S. district court in the following federal judicial districts: District of Delaware. District of New Jersey. Eastern District of Pennsylvania. Middle District of Pennsylvania. Western District of Pennsylvania. 24 Borden’s Failed Arguments & Defenses as 3rd Circuit Court of Appeals Reversed the 3rd District Court Decision “Longstanding Tradition” “Show of Unity” or “Team Cohesiveness” It was a “show of respect” – from several perspectives & viewpoints Defendants violated his right to Free Exercise of his religious beliefs He was not establishing a religion, as an arm of the government Defendants violated his Due Process and Equal Protection rights under 14th Amendment of the U.S. Constitution The School District's justification for its policy was based on an erroneous interpretation of the Establishment Clause
- 79. School Board’s newpolicies were unconstitutionally overbroad and vague School Board policy violated his constitutional rights to freedom of speech, academic freedom, freedom of association, and due process 25 The Bottom-Line on Borden from 3rd Circuit Court of Appeals Borden did not pass the (ALL of which must be passed under existing binding precedents): Lemon Test (1971) The Endorsement Test (1984) The Coercion Test (1992) Nor, the Santa Fe Decision (2000) 26 Borden & Counsel Appeal to The U.S. Supreme Court Supreme Court of the United States Mar 2, 2009 555 U.S. 1212 (2009) Petition for writ of certiorari to the United States Court of Appeals for the 3rd Circuit denied (A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it) . Supreme Court declines hearing Borden’s Appeal – Appeals Court Ruling is now “Binding” for U.S. District 3 Many courts in U.S. now using Borden v. East Brunswick case as “Persuasive Precedent” – along w/ Lemon (1971), Lynch
- 80. (1984), Lee (1992),Santa Fe (2000) 27 Relevant Binding Cases to Borden Engel v. Vitale, 370 U.S. 421 (1962) - A New York State law required public schools to open each day with the Pledge of Allegiance and a nondenominational prayer in which the students recognized their dependence upon God. The law allowed students to absent themselves from this activity if they found it objectionable. A parent sued on behalf of his child, arguing that the law violated the Establishment Clause of the 1st Amendment, as made applicable to the states through the Due Process Clause of the 14th Amendment. Issue - Whether school-sponsored nondenominational prayer in public schools violates the Establishment Clause of the 1st Amendment. Ruling - Yes (6-1) School-initiated prayer violates 1st Amendment The Lemon Test – Lemon v. Kurtzman [403 U.S. 602, 612-13 (1971)] The Endorsement Test – Lynch v. Donnelly [465 U.S. 668, 687- 694 (1984] The Coercion Test – Lee v. Weisman [505 U.S. 577 (1992)] 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]. 28
- 81. Lemon v. Kurtzman (Pennsylvania& Rhode Island Cases) Based on public tax money being distributed to parochial schools to cover teacher salaries and textbook purchases. 29 Lynch v. Donnelly (Pawtucket, RI) The City Christmas Display in a public park included Santa, a decorated tree, a “Season’s Greetings” banner, a reindeer pulling a sleigh, a cutout clown figure, a cutout elephant figure, a cutout teddy bear figure, and a Nativity Scene (a Creche, pronounced Krĕsh) Ruling - the display did not establish any religion – it depicted historical symbols only, the city did not endorse a religion or Christianity, nor did it inhibit religion. It served a secular purpose and that government was not entangled with religion. 30 Lee v. Weisman (Rhode Island Case) Based on clergy praying at public schools, especially graduation and other mandatory events for students under 18 years of age. 31 Santa Fe Independent School District v. Doe The student body-elected Student Council Chaplain had traditionally prayed over the PA system prior to home football games. A suit was filed by one Catholic family and one Mormon family saying such prayer established a religion contrary to theirs. Ruling – Student-led prayer violates the Establishment Clause. 32
- 82. Bill of Rights ofthe United States of America (1791) James Madison wrote the amendments, listing specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the 1st Amendment. Congress is prohibited from making laws establishing religion or abridging freedom of speech. The 4th Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant. The Bill of Rights was strongly influenced by Virginia’s Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties. One of many contentious points between Federalists (who advocated a strong national government) and Anti-Federalists (who wanted power to remain with state and local governments) was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty. Madison, then a member of the U.S. House of Representatives, altered the Constitution’s text where he thought appropriate. However, several representatives, led by Roger Sherman, objected, saying that Congress had no authority to change the wording of the Constitution. Therefore, Madison’s changes were presented as a list of amendments that would follow Article VII. The House approved 17 amendments. Of these, the Senate approved 12,
- 83. which were sentto the states for approval in August 1789. Ten amendments were approved (or ratified). Virginia’s legislature was the final state legislature to ratify the amendments, approving them on December 15, 1791. 33 Key Questions to Consider Should the original Bill of Rights (Initial U.S. Constitution) be set-in-stone (Original Intent) or should it be a “living, breathing, everchanging” document? Do pre-game meal blessings violate civil rights? Do team pre-game prayers violate civil rights? Do public pre-game prayers before athletic events violate civil rights? Does it violate civil rights of the masses for a person to kneel at mid-sport arena to pray after an event? Do “moments of silence” violate civil rights? Can a coach or teacher counsel athletes or students, using principals based on Christianity? Do churches buying sponsor “advertisement” at sport venues violate civil rights? What about ads in the printed/published game program? Should the U.S. return to Everson v. Board of Education (1947), and The Establishment Clause Test (1947); or, hold onto: Lemon (1971), Lynch (1984), Lee (1992), Santa Fe (2000), and Borden (2008)? 34
- 84. 2 Dr. Terry Conkle'sWriting Tips (NOT Comprehensive but should be helpful) May 2020 ELEMENTS OF EFFECTIVE FORMAL WRITING 1. CENTRAL IDEA Good writing involves focusing on a clear, manageable idea, argument, or thesis upon which to organize your material. It includes choosing secondary ideas that support and reinforce your central idea. Guidelines: · The purpose or central idea is sufficiently limited for meaningful discussion. · The central idea is clearly stated, normally in the opening. · All subordinate ideas relate clearly to the central idea. 2. ORGANIZATION Coherent arrangement of material is vital. It involves keeping readers oriented to the central and subordinate ideas. Good organization is logical and sequential. It shows readers key divisions of the material being read. Guidelines: · The “Introduction” orients readers to the central idea and line of reasoning. · Material is logically and coherently sequenced; subordinate ideas are effectively identified. · Transitions are clear and helpful. · The conclusion or closing summarizes the argument(s), emphasizes the central idea, and leaves readers with “completion.”
- 85. 3. SUPPORTING MATERIAL Explanations,examples, statistics, and (sparing use of) quotations make ideas and information presented meaningful and memorable for readers. In expository writing, supporting material clarifies; in argumentative writing, it persuades. Guidelines: · Examples are relevant, specific, detailed, sufficient, and persuasive. · Quotations support arguments; but summarizing material and citing authoritative sources is effective too. 4. EXPRESSION, WORD CHOICE, AND POINT OF VIEW Language is clear, specific, accurate, and appropriate to the audience, purpose, and material. Variety in sentence structure and length (number of words per sentence) creates emphasis. Guidelines: · Word choice is clear, specific, accurate, unassuming, and free of clichés and mis-used jargon. · Sentences are free of wordiness (brief and concise) and ambiguity(the points are clear). 5. SPELLING, GRAMMAR, AND PUNCTUATION This element of good writing counts only when it’s wrong (good writing is an understood expectation). Fair or not, readers will notice spelling, grammar, and punctuation only when there are mistakes. Guidelines: · Spelling, including key technical terms and proper names, is correct. · Correct words are used to convey the intended meaning (See Mark Twain’s thoughts elsewhere!).
- 86. · Generally acceptedrules of grammar and syntax are followed, including pronoun/noun agreement, subject/verb agreement, appropriate verb tense, pronoun case, possessive forms, parallelism, etc. · Punctuation, particularly comma placement, reflects standard usage. · Mechanical errors and mistakes have been resolved via proofreading and revision. Defining Writing Conventions Writing conventions are defined as a set of generally accepted standards for written English. Conventions are used to make writing more readable. In other words, things are done a certain way so readers can easily determine what an author is trying to say. Conventions include spelling, punctuation, capitalization, grammar, and sentence structure. Students should: · Apply spelling rules correctly. · Use correct punctuation to smoothly guide the reader through the paper. · Use verb tenses correctly. · Write sentences that express complete thoughts. · Demonstrate paragraph organization and use smooth transitions. In addition, each kind of writing has its own conventions. For instance: · Narrative writing must have characters, setting, and plot. · Descriptive writing must appeal to the senses through use of vivid, colorful, precise vocabulary. · Expository writing must inform, clarify, explain, define, or instruct. · Argumentative/Persuasive writing must present an argument based on facts and logic and attempt to sway a reader’s opinion. A Philosophy for Teaching Conventions As a rule, Dr. Conkle probably will not teach a lesson on “conventions.” Anyone reading this is likely in an undergraduate or graduate-level higher education course taught
- 87. by Dr. Conkle;and, there are too many lessons involved for that, so issues will be handled individually. Besides, individual concepts stick better when students can apply them practically. Similarly, rather than teaching grammar in isolation, students in Dr. Conkle’s course are generally applying their grammar lessons from P-12 schooling to an “advanced” writing assignment. It is a matter of diligently reinforcing concepts by ensuring students follow conventions of good writing. At this point, there should be no excuse for errors like comma splices, incomplete sentences, homophone confusion, and using the “almost right word.” Other Hints How to Avoid Colloquial (Informal) Writing Although it may be acceptable in e-mails or chat rooms, a major pitfall that has ruined the quality of formal, writing is using excessive colloquialism. Understand that “Formal Writing is anUn-Natural Act.” Here are some steps/tips to help improve writing. 1]Know the meaning of colloquialism. This can best be described as "writing in the way that one would speak." It is an informal, slang style of English that should be reserved primarily for speech, as it can seem unprofessional and sloppy in written text. A casual tone can be interpreted positively in person with face-to-face contact; but, it can be perceived negatively in writing. 2] Understand basic English punctuation. This might seem obvious, but when people speak, they usually disregard certain rules that are mandatory in writing. For example, one usually omits pauses when speaking that are required in formal writing, which are usually denoted by commas (or set apart within parentheses). 3] Avoid using common colloquial words/expressions, as listed
- 88. below. Again, theseare words that, although acceptable in speech, should not be used in formal writing. 4] Avoid using "filler" or “waste” words. These words are not necessary and should be removed (some examples shown below). · Basically – At best, it can be used to begin a sentence, but there are better choices available to replace the word, if it is not omitted entirely. (e.g., "A microphone is basically a device that is used to record sound.") · Even – Often, this word is found as an "additive" to a series, as in the following example, but is generally not needed. (e.g., "The basket contained eggs, sandwiches, and even utensils.") · Just – When used in the same context as BASICALLY, this is another overused filler word that one should omit. (e.g., "When pouring the solution, just be certain not to spill its contents.") · Well – Generally used to begin a sentence following a question. (e.g., "Why is global warming a problem? Well, one major issue is the...") 5] Avoid contractions. When writing formal papers, write-out contractions. In all collegiate writing it should be presumed that assignments must be written formally and that contractions (that are not part of some “landmark” or “imperative” quote) should not be used unless the professor specifies that contractions are okay. 6] Limit using subjective pronouns. If writing formally and/or objectively, avoid using the words "I," "me," "you," “us,” and "we." To avoid this, try writing from the third-person (generic) perspective. Naturally, formal business letters are an exception.
- 89. 7] Avoid splittinginfinitives. An infinitive is a verb preceded by the word "to," such as "to go" or "to want. When writing, keep infinitives together, rather than separating them with other words. For example, substitute "He tried to not sneeze in the library, but failed" with "He tried not to sneeze in the library, but failed." 8] Avoid ending your sentences with a preposition. In most cases, it is inappropriate to end a sentence with a preposition [i.e., down, during, in, into, of, since]. For example, replace "What is the bag filled with?" with "What is inside the bag?" An exception is when the preposition fills the role of an adverb (which may answer the question “where?” 9] Avoid clichés. Clichés are phrases that have been exhausted to the point where they have completely lost originality. o Hercules was as strong as an ox. o I give an arm and a leg to find a parking spot when I shop during the holiday season. o There are loads of websites on the Internet. 10] William Shakespeare, in Hamlet, has misled the masses by stating “to be, or not to be, that is the question.” There is almost no situation where “to be” is correct, or other “to be verbs,” and cannot be stated in some better way with “strong(er) verbs.
- 90. Other Random WritingTips from Dr. Conkle (used with dry humor, and some sarcasm, added) 01] From Mark Twain (in a letter 10-15-1888): “The difference between the right word and the almost right word is the difference between lightning and the lightning bug.” Did “Bunky” throw a pebble, rock, or boulder at the side of his dad's barn? The point is, use a good Dictionary, not a Thesaurus. Broaden your vocabulary, so Twain can be supine in the grave and not prone. Which option below is most precise (it does depend on the situation as it occurred)? They do have different dictionary definitions! Did John ride a ___ at the carnival? {horse / mule / donkey / burro / mare / stallion / bronco / zebra} 02] From Day, R. A. (1994). How to write & publish a scientific paper (4th ed.) Phoenix, AZ: Oryx Press · Each pronoun should agree with their antecedent. · Just between you and I, case is important. · A preposition is a poor word to end a sentence with. · Verbs has to agree with their subject. · Don't use no double negatives. · Remember to never split an infinitive.
- 91. · Avoid clichéslike the plague. · Join clauses good, like a conjunction should. · Do not use hyperbole, not one writer in a million can use it effectively. · About sentence fragments. 03] Use Standard English. 04] Be brief and concise when doing “professional writing,” while using as much detail as possible. Be flowery with papers for an English class, not a professional course. Grammar check will typically discourage using many adverbs that are not necessarily necessary (erroneous humor intended). 05] Do not use contractions in formal papers, unless they are part of quoted material – unless otherwise specified every assignment/paper for Dr. Conkle is a formal paper. YES, this has already been stated! 06] Spell (fully) single-digit numbers, use numerals for multiple-digit numbers (except when beginning sentences – APA) With standard units of measure, it is okay to use a single- digit number. 07] Do not use gender-biased wording, when writing generally, do not be tempted to write in the masculine perspective. And, know that “gender” is the preferred word, as opposed to “sex,” when discussing males, females. Be general or generic when possible (e.g., they, their). 08] Already stated, but there is almost no situation where “to be...” is appropriate or could not be said better with other wording, for example: “Faculty members are scheduled to be at a meeting on the first Monday of each month.” “Faculty members meet the first Monday of each month.” “Everyone wanted Carol to be captain of the team.” “Everyone wanted Carol as team captain.” 09] Use “that,” “which,” “who,” and “whom” appropriately.
- 92. 10] e.g., =for example; and, i.e., = that is 11] Use a passive 3rd-person voice when reporting facts, state things matter-of-factly; use an active (1st- and/or 2nd-person) voice when communicating how the facts relate to you, and/or, your past, present, or future. For consistency, use plural writing when speaking globally or universally and not of a single or specific entity. 12] Avoid “Widows” and “Orphans” in your documents. “Widows” are single lines of type left at the top of a page, and “Orphans” are single lines of type left at the bottom of a page. Adjust your paragraphs accordingly. 13] Use “spell check” and “grammar check” on your computer – proof-read everything multiple times, and have another trusted person proof-read your work for clarity and understanding (you will eventually get tunnel-vision). 14] Space twice after each end-punctuation, making papers more reader-friendly. 15] Avoid using “in order to”.....the initial two words are waste-words in practically all cases, adding nothing to clarity. For example: “In order to prevent confusion, I have drafted this help-sheet.” “To prevent confusion, I have drafted this help- sheet.” 16] Use “rather than,” and avoid “instead of.” 17] “Include,” “including” or “includes” is usually a better word choice than “comprised of” or “consists of.” For example: “This help-sheet includes several suggestions.” “This help-sheet consists of several suggestions.” “This help-sheet is comprised of several suggestions.” 18] Know the appropriate places to use commas, semi-colons, hyphens, and parentheses. 19] Know that “a,” “an,” and “the” imply number(s) and can be
- 93. interpreted quite literally. 20]Determine the most accurate and concise wording and use it. For example: “Young women and men wishing to attend college should learn about various institutions before applying to them.” “Prospective college students should research each institution before applying.” 21] Avoid infinitive phrases (to + a verb, although correct) when possible, they often waste character spaces. Gerunds are preferred over infinitives (e.g., swimming, to swim; dreaming, to dream; telling, to tell; etc.) Example: “Phil agreed to give me a ride to the store.” “Phil gave me a ride to the store.” 22] Know when to use “although,” “whereas,” and “while.” When a time relationship exists, use “while;” otherwise, “although” or “whereas” convey the thought. Also, use “although” as opposed to “even though.” 23] Use present tense to communicate facts already published (key points from an article), indicating existent knowledge. 24] Limit the use of prepositions, for clarity; but, when they are used, use them in correct context, avoid redundancy. Example: “The enrollment of students in universities in America is growing to the point that professors have to explore new methods to teach and to grade papers.” “Student enrollment in American universities has grown so much that professors must explore new teaching and paper-grading methods.” 25] Although technically both are correct, use “toward” rather than “towards” - do not waste the character space. 26] Rather than using “about,” use “concerning” or “regarding” - they are so much cleaner. Or, consider re-wording in the most concise way. Example: “Students were engaged in a discussion about college
- 94. football commercialism atthe party.” “Students had a discussion concerning college football commercialism at the party.” “Students had a discussion regarding college football commercialism at the party.” “Students discussed college football commercialism at the party.” 27] Consult a “Writing Lab” or get a “Tutor” if you have persistent problems on papers. 28] Do not use “and/or” in papers, one or the other is most correct given the context in which it is used. 29] Consult an APA Publication Manual for guidance in your writing!!!!! 30] By definition “whether” compares 2 or more concepts, do not use “whether” with “not” afterward – “not” is implied if there are no comparatives in a sentence. Example: Incorrect – Bunky was not sure whether or not he would attend the game. Correct – Bunky was not sure whether he would attend the game. Correct – Bunky was not sure whether he would attend the game, stay home, or see a movie. 31] Avoid saying “based off of.” Primarily it makes no sense; but, even if it did, it wastes words. It is correct to say, “based” “founded,” “established,” “initiated,” “originated,” etc. by/on/for – depending on context. 32] “Prove” / “Proof” - be aware that research deals with statistical probabilities; thus, findings or results do NOT prove things. 33]Avoid “Colloquial Writing.” Other Examples of Colloquial Words & Expressions
- 95. · Lots –a lot is a small parcel of land. It is not a word that indicates “many,” “numerous,” or “several.” · A lot – This phrase should be replaced with a stronger something less informal, such as "several," or "many." Be mindful that "alot" is not a word (nor is “lots” in similar contexts). "He has a lot of reasons for justifying his actions." "He has several reasons for justifying his actions." · Ain't – The word "ain't" has been incorrectly used as a contraction for "am not," "is not," "are not," "has not," and "have not." "Ain't" should never appear within formal writing. "This ain't working." "This is not working." · Anyways – The word "anyways" is also always nonstandard and should usually not be used in formal writing. Always use "anyway." "Anyways, thank you for your time." "Anyway, thank you for your time." · Could of, would of, should of – These are incorrect phrases, usually the result of trying to write what one hears (or thinks one hears). The phrases "could have," "would have," and "should have" are correct. · Get – From time to time, this word replaces "understand". "Do you get the homework?" "Do you understand the homework?" · Gonna, Wanna – These are the condensed versions of "going to" and "want to," respectively, which should be revised in formal writing accordingly. "I am gonna go to the supermarket.” "I am going to go to the supermarket." “I am going to the supermarket.” · Be careful when using “just” or “even” - they can be colloquial, unless they add clarity to a sentence do not include them. · Kinda, kind of – The use of these words to mean "somewhat" or "rather" is informal, and should be avoided.
- 96. KIND OF, whenmeant as "type of", is acceptable, but is somewhat overused. Consider replacing with "type of." “It is kind of cold outside." "It is rather cold outside." "A parakeet is a kind of bird." "A parakeet is a type of bird." · Like – Consider replacing with "as if", "similar to", or "such as", depending on the context. "It is like he never existed." "It is as if he never existed." · Okay – This word is a derivative of "O.K.", which appeared as an abbreviation for "oll korrect" (a conscious misspelling of "all correct") in 1839. It is similar to "alright." "Is everyone okay?" "Is everyone all right?" · Pretty – Using this word tends to weaken one's argument, when used in place of "very," and should be either replaced or eliminated entirely. "I think this is a pretty good investment that your company should consider." "I think this is a very worthwhile investment that your company should consider." · Real, really – Replace the word "real", as used in this context. "The coffee is real hot!" "The coffee is very hot!" But, what is wrong with stating, “The coffee is hot.” Or “The coffee is scalding.” · Sorta, sort of – Similar to KINDA and KIND OF, these should be replaced when used to mean "rather" or "somewhat." "The project is sorta long." "The project is somewhat long." · Use to – The proper form of this phrase, in writing, should be "used to." In speech, the d is sometimes silent, which makes for the confusion in writing.
- 97. "As a child,I use to go to nursery school." "As a child, I used to go to nursery school." “As a child, I attended nursery school.” 2 Examples John, I'm looking for a job and I've heard through the grapevine that you're looking for a workhorse to basically run the shop with. Well, I'm the man of the hour, ‘cause I've got a lot to offer. I'm pretty hard-working, and I'm really good about being on time. I'm use to working by myself. Anyways, let me know if you want to get together for an interview, okay? (68 words) -Unprofessional Joe Dear John: I understand you are looking for a strong worker to assist in your shop. I would appreciate consideration because I am diligent, punctual, and accustomed to working with minimal supervision. Please contact me if you are interested, to arrange an interview. I appreciate your time. (45 words) Respectfully, Professional Joe Redundancy Incorrectly = “hundreds and hundreds,” “thousands and thousands;” “more and more,” “over and over” More Correctly = say a word once, and point made; “increasingly,” “repeatedly,” “often,” “generally,” “typically,” “usually,” etc. Incorrectly = “I'm going to go ahead and tell you...” More Correctly = “I will tell you...” “I can tell you...” “I
- 98. should tell you...”“I must tell you...” Incorrectly = “You need to go ahead and go to the store.” More Correctly = “You should leave now for the store.” “You must leave now for the store.” Wordiness and Redundancy “I will be driving to the store to buy the milk my mother wants to be using for the brownie recipe she will use to bake for the picnic that will be held at the church we attend each Sunday of the month, every month.” Accuracy in Terminology Kids are goats! In the allied professions of HPERD, and the sub-disciplines of Kinesiology/Physical Education, we work with: children, youngsters, young people, infants, toddlers, students, athletes, student-athletes, adolescents, pre-pubescents, teenagers, performers, participants, clients, patients, customers, subjects (in research)
- 99. “Sport Arena” isa general, or generic usage, term that encompasses any and all of the following, where people compete and spectators typically gather to view, observe or enjoy sporting events: Coliseum, Gym, Stadium, Field, Court (basketball, tennis, volleyball, badminton, etc.), Floor, Alley (bowling), Range (indoor or outdoor shooting, archery, firearm, marksmanship, etc.), Rodeo Corral, Swimming Pool, Water/Lake/River/Sea (crew, kayak, yacht races, fishing, etc.), Course (golf, cross-country skiing, etc.), Track (running events, Grand Prix, NASCAR, etc.); and, there are other venues or surfaces in and on which people compete or perform in the sport-world. If you are reading this, you surely understand the point. Globally, universally, or generally, not every athlete or player performs on a court or floor, or on a field – do they? Other Tips · Remember, less is more. Having a long, verbose paragraph does not necessarily mean that it is meaningful. · Vary sentence lengths, some shorter and some longer. Write with a flow of wording, not a monotonous rhythm. · Do not use slang. Try chatting with your friends online by using proper writing styles! Practice by using only proper writing styles in e-mail and on Face Book, or with IMs. · Writing sounds stronger if you remove adverbial phrases and replace them with more meaningful words. For example, "very good" can be replaced with "excellent," "very nice" becomes "delightful," "very bad," becomes "terrible," "definitely true," becomes "obvious," and so on. As a general guideline, try to avoid "-y" words. · Similarly, limit your use of "absolute" terms, such as "everyone", "always", "never." Unless you are relaying an indisputable fact, these highly opinionated words will weaken your writing. For example, "He always buys the most expensive shoes" could be revised to "He often buys
- 100. the more expensiveshoes." · Try not to think of proper writing as strictly "academic." It makes you appear more intelligent. More importantly, it eliminates the risk of "slipping out" bad habits in situations where it is critical to convey professionalism. • Expand your vocabulary! • Read! Reading will help improve your vocabulary, and help you distinguish between formal and informal writing. • Use a thesaurus. If you are using a word too often, you might replace it with another term. BUT.....check the dictionary definition to ensure you are using the “right word” rather than the “almost right word!” Remember Mr. Twain’s guidance! Remember, this help-sheet is not all-inclusive or comprehensive. As college students you should know, mostly, what is proper, and practice excellent writing skills. For this week’s Discussion, read the case study: "Engro Chemicals Pakistan Limited—Business Disaster Overcome" by Muntazar B. Ahmed. Based on your reading and analysis of the case study, Post your response to the following: · What were the risks faced by Engro after the fire had left its head office in ruins? · Explain the purpose of the Business Continuity (Disaster Recovery) Plan. What features were omitted from the plan?
- 101. · The systemswere not integrated and this made it simpler for Engro to recover from the disaster: Does this negate the concept of Enterprise Resource Planning (ERP)? Why, in your opinion, did Engro deviate from the Business Continuity (Disaster Recovery) Plan? · Evaluate the overall plan and implementation. · What best practices or lessons can you learn from Engro, and how might you apply those at your organization? Provide specific examples to support your observations. Please be specific, and use citations and references as appropriate and necessary. Reference: Ahmed, M. B. (2009). Engro Chemicals Pakistan Limited— Business disaster overcome. (Ivey Publishing Case No. 909- E24).