Another court fight over a taxpayer-funded religious charter school starts in Oklahoma
Advocates hope to overcome Supreme Court tie that killed plans for Catholic school
It was less than a year ago that the U.S. Supreme Court, by the narrowest of margins, brought an end to plans to create a totally government-funded virtual school operated by Catholic dioceses in Oklahoma. Now, advocates of religious schools financed with taxpayer dollars have filed a lawsuit that could ultimately give the nation’s top court a second chance to approve such a school.
But this time, the school would be Jewish rather than Catholic.
The case is National Ben Gamla Jewish Charter School Foundation v. Drummond, in which the foundation is seeking to overturn the February decision by the Oklahoma Statewide Charter School Board to reject the creation of a virtual charter school whose curriculum would include Jewish religious instruction. Ben Gamla already operates four in-person charter schools in Florida, although those schools provide only a secular education, albeit one steeped in familiarizing students with the Hebrew language and Israeli culture.
It was that Oklahoma school board that in 2023 had approved the creation of the St. Isidore of Seville Virtual Charter School, which could have become the nation’s first government-funded religious school were it not for courts that stepped in the way. The Oklahoma Supreme Court was the first to prevent the school’s creation, saying that it violated both the Oklahoma and U.S. constitutions. That decision in turn was appealed to the U.S. Supreme Court, which split 4-4 on overturning the Oklahoma court’s ruling. Because the vote was a tie, it had the effect of upholding the Oklahoma ruling without setting a precedent.
When the board rejected Ben Gamla’s plans for a charter school, the board said it did so because it was bound by the ruling of the Oklahoma Supreme Court.
The tie vote in the nine-member U.S. Supreme Court was possible because one of the justices, Amy Coney Barrett, who is Catholic, recused herself, presumably because of indirect connections she had with the proposed Catholic school. Supporters of religious charter schools are betting that Barrett will provide the vote needed for the Supreme Court to order the board to accept Ben Gamla’s charter application.
Ben Gamla filed its lawsuit in the Western District of Oklahoma U.S. District Court. It is being represented by the Becket law firm, which had represented the Catholic school and is one of the country’s biggest players in religious-liberty litigation.
Named as defendants in the lawsuit are Gentner Drummond, the Oklahoma attorney general and members of the charter school board.
According to the lawsuit, Ben Gamla “aims to create a charter school in Oklahoma where students receive a rigorous academic education alongside a deep cultural and ethical grounding derived from the Jewish faith, heritage, and tradition.”
The lawsuit further explained1:
For many Jewish parents, and especially Orthodox Jewish parents, it is an important religious obligation to send their children to Jewish schools, where they will receive an education in secular subjects as well as the Jewish faith. This belief concerning the importance of religious education comes straight for [sic] the Torah, the Talmud, and the Jewish Code of Law, which explain that Jewish parents have a solemn responsibility to transmit the Jewish faith to their children.
Unfortunately, a Jewish education is not widely available in many parts of the United States. Where it is available, it can often be prohibitively expensive and beyond the reach of many Jewish families. Plaintiff Ben Gamla thus seeks to fill a gap by partnering with Jewish parents in upholding their religious beliefs and obligation to provide a Jewish education to their children. Indeed, the transmission of Jewish religious beliefs and practices to children is a core aspect of Ben Gamla’s religious mission.
It is likely that the federal court will schedule its first hearing in the case for later this year. Ben Gamla is likely to base its legal arguments in part on the Supreme Court’s 2022 ruling in Makin v. Carson, which found that states providing education vouchers cannot discriminate against religious schools simply because they are religious.
Since the lawsuit was filed just a few days ago, Drummond’s office has yet to file a formal response.
Although it has not yet publicly commented on the new lawsuit, the American Civil Liberties Union will almost certainly oppose Ban Gamla’s plans. It was one of the groups that had sued to prevent the formation of the St. Isidore school.
When announcing its opposition to that Catholic school, the ACLU said:
A private religious school is, of course, well within its rights to teach [religious] lessons. And churches are free to inculcate these beliefs in Sunday school. But they are wildly unconstitutional in public schools. Indeed, the mere notion of a religious public school is a constitutional oxymoron. This would be true for any proposed religious charter school — whether imposing Judaism, Islam, Buddhism, or any other faith on students.
Another lawsuit in Tennessee
A lawsuit similar to the new one in Oklahoma is also underway in Tennessee. There, the ACLU and various individuals and other entities are trying to overturn a decision by the Knox County Board of Education to allow the creation of the Wilberforce Academy of Knoxville, which would have an evangelical Christian mission, as a charter school.
Regardless of lower-level judicial decisions in Oklahoma and Tennessee, the cases are almost certain to face appeals. There is no way to know this early which one, if either or both, will ultimately be decided by the Supreme Court.
For ease of reading, formatting used in the legal document has been omitted from the following quotation.