The Fight for a Jewish Charter School Isn’t a Christian Nationalist Plot

The fight for religious charter schools is back in court — and this time with a new protagonist: Jews. Late last month, the Ben Gamla Charter School filed suit in Oklahoma after the state charter school board denied its application solely because the proposed school is religious. But while the stakes of the debate over religious charter schools — competing views of religious liberty and church-state separation — have by now become familiar, this time around a darker line of criticism has emerged: that the effort to establish a Jewish charter school in the Sooner State is not a genuine case at all, but the product of Christian nationalist actors using Jews to advance their broader aims.

In making this claim, separationist critics argue that, after an earlier Catholic charter school effort in Oklahoma stalled at the Supreme Court last year, proponents have simply propped up a Jewish plaintiff as a more sympathetic stalking horse for advancing a broader strategy to reintroduce religion — and, more often than not, Christianity — into publicly funded schools.

Unfortunately, in an environment where antisemitic conspiracy theories flourish — where Jews are blamed for everything from the Iran War to Jeffrey Epstein — this framing should come as no surprise. But distorting Jewish efforts to secure support for Jewish education into a form of manipulated self-betrayal comes with its own unique set of harms. It undermines Jewish efforts to assert their legal rights at the very moment they are most urgently needed.

Casting the Ben Gamla litigation as merely a Christian nationalist ruse is harder to sustain once one looks more closely at the facts. The founder of the proposed Ben Gamla school, Peter Deutsch, is a former Democratic congressman who has operated a network of “English-Hebrew Charter School[s]” in Florida for decades. The goal of his new Oklahoma initiative is to create a virtual charter that provides a “rigorous academic education alongside a deep cultural and ethical grounding derived from the Jewish faith, heritage and tradition.” Built in this way, the school aims to provide a Jewish education in locations where families do not currently have access to such an option.

The Ben Gamla litigation follows last year’s failed effort to secure approval of a proposed Oklahoma Catholic charter school, which stalled after a deadlocked Supreme Court left in place a state court decision rejecting it. As in previous rounds of litigation, critics have responded to the proposed Ben Gamla charter school proposal with familiar — and reasonable — arguments asserting that funding religious charter schools would violate principles of church-state separation.

Assessing the constitutionality of a religious charter school is no straightforward matter. The core legal dilemma derives from the very nature of charter schools: they are government authorized, but privately operated. As a result, courts have debated over the years whether, for the purposes of constitutional analysis, they ought to be viewed as public schools or private schools. If they are public schools, then allowing them to operate would offend core constitutional prohibitions against public institutions engaging in religious indoctrination. If they are private schools, then refusing to authorize them qualifies as religious discrimination; as the Supreme Court has made clear multiple times over the past decade, government cannot open a program to private institutions, but then exclude religious institutions on account of their being religious.

Both constitutional values – the prohibitions against state-sponsored religious indoctrination and state-sponsored religious discrimination – have long been fiercely guarded by the American Jewish community. Of course, in this case, figuring out which of these two values is the one actually implicated turns into somewhat of a constitutional Rorschach test. When it comes to classifying charter schools as public or private, there are strong arguments on both sides of the ledger.

To be sure, given the overlap of interests, it is not surprising that some of the people involved in earlier efforts share partners and allies with those behind Ben Gamla. But the fact that the two proposed schools draw on overlapping networks and deploy the same legal arguments simply reflects what should be obvious: that there exist committed Jews and Christians who both see real benefit in securing funding for their respective faith communities, making religious schools more affordable and accessible and using the existing panoply of legal arguments to advance their rights.

But the argument that the case is fake, concocted and really driven by an unholy alliance between Jews and Christian nationalists deserves no quarter. Consider, as a prime example, the claim advanced by the CEO of Americans United for Separation of Church and State: that this case amounts to “using Jews to advance a Christian Nationalist agenda that is not ultimately in Jews’ best interest.” Or, alternatively, the Freedom from Religion Foundation’s claim that Ben Gamla’s “motivation” is “ideological, not theological” — not a genuine effort to expand access to Jewish education, but an attempt “to secure public funding for religious indoctrination by any means necessary.” These claims do more than raise constitutional objections; they recast Jewish advocacy as instrumental to someone else’s agenda.

Viewing Jewish attempts to protect their own rights – especially their religious liberty rights – as part of some elaborate scheme is dangerous stuff. Jewish efforts to secure access to public funding on the same terms as other educational institutions are not only as American as apple pie; they are as Jewish as matzah balls. And Jews engaged in such advocacy are no more the puppets of shadowy Christian Nationalists than they are participants in some vast “globalist” conspiracy.

The twin, and at times dueling, First Amendment values with respect to religion — against establishing religion and in favor of religious liberty — have both been essential to Jewish flourishing in the United States since the very beginning of this country. Insinuating that Jewish efforts to protect those rights — on whatever side of the political ledger — are anything other than good-faith attempts to secure the place of American Jews threatens the very ability of Jews to access those rights. It risks casting Jewish advocacy as presumptively suspect — a manipulated and illegitimate form of advocacy with no place in a properly functioning democracy. More troubling still, it reinforces a familiar and corrosive trope: that Jews do not act as independent agents, but as instruments of broader, and often suspect, agendas and conspiracies. And as the place of Jews in America has become increasingly precarious in recent years, it is hard to imagine a more dangerous time to allow constitutional disagreement to undermine the legitimacy of constitutional advocacy.

Michael Helfand is the Brenden Mann Foundation Chair in Law & Religion at Pepperdine Caruso School of Law; Visiting Professor at Yale Law School; Senior Fellow at the Shalom Hartman Institute; and Senior Legal Advisor to the Teach Coalition.