Oklahoma鈥檚 charter school board on Monday rejected a proposal for a Jewish charter school, with several board members saying they supported the idea but felt constrained by legal decisions against religious charters.
鈥淚f I could have voted for this school today without being bound, I would have voted yes,鈥� Brian T. Shellem, the president of the Statewide Charter School Board, said during the meeting. 鈥淚 think it would be great for the Jewish community and the Jewish kids to have this high-quality option of a school.鈥�
The proposed Ben Gamla Jewish charter school, which aims to offer an explicitly religious curriculum, was being watched as the latest flashpoint in a nationwide debate over whether states may, or must, authorize religious charter schools on the same basis as secular charter schools. There are efforts in at least two other states to establish religious charter or contract schools and advocates hope to use such cases to return the issue to the U.S. Supreme Court, which deadlocked 4-4 last year in a case about a proposed Catholic charter school in Oklahoma.
The vote was 8-0 to deny the Jewish charter on the nine-member Oklahoma charter board, with one member not voting. Board members said their hands were tied by the court鈥檚 previous decisions involving the first proposed religious school in the state, the St. Isidore of Seville Catholic virtual school.
That school was approved by a predecessor agency before that religious charters are barred under state law and the First Amendment鈥檚 prohibition on government establishment of religion. In the appeal of that decision, the U.S. Supreme Court last year heard arguments but tied 4-4, with Justice Amy Coney Barrett recused. The result affirmed the state high court鈥檚 decision without setting a nationwide precedent.
鈥淚 would say we are bound by the Oklahoma state supreme court even if we disagree with that ruling,鈥� said Shellem. 鈥淭here are legal arguments that went to the U.S. Supreme Court, [and] a 4-4 tie punts it back to us.鈥�
But the board acknowledged that the fight over the school is not over, as organizers have indicated they would sue if the charter application is rejected, in an effort to get the legal question back before a full bench of the nation鈥檚 highest court.
鈥淚 would be shocked if there鈥檚 not a lawsuit filed by Friday,鈥� Shellem said. 鈥淲e are going to be sued.鈥�
Barrett is widely presumed to have recused herself in the St. Isidore case because of her ties to the University of Notre Dame law school, where a faculty member who is friends with the justice and a religious-liberty clinic were involved in that proposed school. Those Notre Dame affiliations are not involved in the Ben Gamla application.
Charter board girds for a lawsuit
The board separately authorized the hiring of private lawyers to represent it in such a lawsuit, just as the board had done to argue in support of religious charters at the U.S. Supreme Court in the St. Isidore case. Oklahoma Attorney General Gentner Drummond, a Republican who is running for governor, has led the legal fight against religious charter schools in the state.
(Drummond鈥檚 office provides legal counsel to the statewide charter board, which Shellem and other board members said Monday was satisfactory on most matters but presents a conflict on the religious charter issue.)
鈥淲e want to take the [state] politics out of this,鈥� Shellem said.
A lawyer representing the proposed Ben Gamla charter school said after the board鈥檚 vote that the school would indeed pursue legal action.
鈥淲e鈥檒l soon ask a federal court to protect Ben Gamla鈥檚 freedom to serve Sooner families, a right that every other qualified charter school enjoys,鈥� Eric Baxter, senior counsel with the Becket Fund for Religious Liberty, said in a statement.
The Jewish charter was proposed by Peter Deutsch, a former U.S. congressman who leads a network of Ben Gamla charter schools in Florida that stress Hebrew language and Jewish culture but do not teach religion. The Oklahoma school, by contrast, would be 鈥渋nfused with Jewish faith and traditions,鈥� according to its application.
A coalition of civil rights groups that the statewide board to reject the Ben Gamla application, because of constitutional questions and for other reasons, praised the board鈥檚 vote.
The board 鈥渋s protecting Oklahomans鈥� religious freedom, public education, and church-state separation,鈥� said a statement from the American Civil Liberties Union, Americans United for Separation of Church and State, the Education Law Center, the Freedom From Religion Foundation, and Oklahoma Appleseed.
Before the vote, staff members told the board there were other concerns about the Ben Gamla application, including questions about how it would serve students in special education and whether its board would comply with state residency requirements. But the officials also suggested those were the types of issues that are typically resolved during the application process.
One board member expressed concerns that Jewish leaders in Oklahoma were not supportive of the application. But other board members who explained their views largely suggested the big constitutional question hanging over religious charters was the only thing keeping them from approving the application.
The of members chosen by the governor and the leaders of the state House and Senate, as well as the state superintendent of public instruction and the state auditor, or their designees.
State Superintendent Lindel Fields was present and voted with the others to reject the Ben Gamla application. Fields last October replaced Ryan Walters, who resigned to become the CEO of the Teacher Freedom Alliance, an anti-public employee union group.
Walters gained nationwide attention for ideas such as requiring copies of the Bible in every public school classroom. He filed a friend-of-the-court brief in the U.S. Supreme Court last year supporting St. Isidore.
