New legal battle begins over religious charter schools in Oklahoma as Jewish charter group sues statewide board

Nearly a year after the Supreme Court left legal questions about the constitutionality of a religious public charter school in Oklahoma unresolved, a new legal fight over the same issue is kicking off in federal court.

The National Ben Gamla Jewish Charter School Foundation is suing the Oklahoma Statewide Charter School Board after the board rejected it from participating in the state’s charter school program. Ben Gamla says it is seeking to “offer Oklahoma families a rigorous, values-based education that welcomes students of all faiths” through a virtual school accessible to students across the state.

The board unanimously rejected the group’s application, citing the Oklahoma Supreme Court’s ruling in 2024 which held that the state’s constitution prohibits religious charter schools. The ruling came after a lengthy legal battle over St. Isidore of Seville Catholic Virtual School, which had been seeking to start a publicly-funded Catholic school but was sued by Oklahoma Attorney General Gentner Drummond. 

The case ultimately reached the U.S. Supreme Court, where the justices deadlocked 4-4, leaving the Oklahoma Supreme Court’s ruling in place and constitutional questions over the school unanswered.

“I believe the Board was placed in a difficult position,” Oklahoma Statewide Charter School Board Chairman Brian Shellem said when the board rejected Ben Gamla’s application. “While we value innovation, parental choice, and high-quality educational opportunities for families, we are unfortunately bound by the Oklahoma Supreme Court ruling from 2024, even if we disagree with it.”

Attorneys for the board, when reached by The Lion, criticized the state’s Supreme Court for forcing it to religiously discriminate against the Jewish charter school.

“The Board is simply doing what the Oklahoma Supreme Court requires, which is discriminate against faith-based applicants simply because they are religious,” First Liberty Institute counsel Hiram Sasser said. “If it were not for the ban on religious schools, the board would have approved this school’s application.”

A new chapter unfolds for religious charter schools

The Ben Gamla case is “the first similar suit since the Supreme Court’s 4-4 split in St. Isidore,” Eric Baxter, senior counsel at Becket and attorney for Ben Gamla, told The Lion via email. “That tie left the Oklahoma Supreme Court’s ruling in place but answered none of the underlying constitutional questions, so Oklahoma officials are still using St. Isidore to exclude religious charter schools.” 

The Supreme Court has repeatedly ruled that “states can’t deny publicly available funding to religious schools because they are religious,” he added, noting that Ben Gamla is “simply asking for equal treatment.”

In the St. Isidore case, the school and state charter school board argued that allowing the Catholic school to open was a way to treat the religious group equally to secular counterparts that are allowed to open charter schools in the state. Yet the state’s Republican attorney general, Drummond, pushed back, arguing that allowing a publicly-funded religious school is a form of state-sponsored religion and could lead to taxpayer-funded Islamic or satanic schools. 

Becket has criticized Drummond for leading the fight against religious charters, saying he can’t “blacklist schools for being religious while welcoming everyone else with open arms.”

Drummond’s office told The Lion it is reviewing the Ben Gamla lawsuit and “will respond in due time.”

“Like St. Isidore, this case challenges Attorney General Drummond’s exclusion of religious schools from the charter program,” Baxter said. Unlike St. Isidore, which was initially approved by the state board but then was blocked by state courts, Ben Gamla was denied from the very beginning. “So we brought a constitutional challenge in federal court to contest that exclusion directly and seek an answer to the question the Supreme Court’s 4-4 tie left unresolved.”

Baxter said Ben Gamla is seeking to offer Oklahoma families an education option that “integrates academic excellence with an emphasis on Jewish religious learning and moral development.”

“Oklahoma families should not be denied access to a top-notch school like Ben Gamla simply because it’s faith-based,” he said.