A proposed Jewish charter school — Ben Gamla — fell one vote short of approval in Oklahoma on Monday, garnering only four of the five votes needed from the Statewide Charter School Board. But while the vote represents a setback for what could become the country’s first religious charter school, the very possibility of approving one represents a constitutional revolution — the result of a first-of-its-kind federal ruling last month temporarily barring Oklahoma from excluding Ben Gamla because of its religious character. That ruling could reshape Jewish education by opening the door to tuition-free religious schools funded with public dollars. For decades, that possibility seemed like an oxymoron. But changes in the Supreme Court’s interpretation of the First Amendment, combined with the relative independence Oklahoma gives its charter schools, have moved that possibility closer to reality, likely emboldening similar efforts in other states, even as Ben Gamla’s application has now stalled in Oklahoma.
Ben Gamla is the latest project of Peter Deutsch, a former congressman who founded a network of secular Hebrew-language charter schools in Florida nearly two decades ago. Unlike those schools, the proposed Oklahoma virtual school would include “daily Jewish religious studies.” To be sure, this isn’t Oklahoma’s first rodeo when it comes to religious charter school litigation. Its charter board previously approved St. Isidore of Seville, a proposed Catholic virtual school, only to have the Oklahoma Supreme Court block it. On appeal, the U.S. Supreme Court then split four–four, with Justice Barrett recusing herself, leaving that decision in place. Earlier this year, board officials said they supported approving Ben Gamla, but believed the state court’s previous ruling required them to reject it because it was religious. When Ben Gamla sued in federal district court, the board did not oppose the requested injunction and groups of Oklahoma taxpayers and charter-school families intervened in federal court to defend the ban.
In finding in favor of Ben Gamla, the district court zeroed in on the question at the heart of the case: How should we view Oklahoma’s charter schools? It is true that Oklahoma law calls them “public schools,” but that legislative label does not settle whether—for constitutional purposes — their actions should be attributed to the government. Answering that question — the notoriously complex “state action” question — requires assessing how the schools actually operate and how much control the state exercises over their decisions. On the one hand, the state authorizes and funds them. On the other hand, private organizations operate them. If they act on the government’s behalf, teaching religion would amount to the government doing so — and that would violate the First Amendment because public schools cannot provide religious instruction. But if they operate as private schools, excluding Ben Gamla because of its religious character would amount to religious discrimination. Indeed, the Supreme Court has made clear over the past decade that states cannot exclude religious schools from funding programs open to other private schools simply because they are religious.
In answering this question, the district court concluded that Oklahoma’s charter schools do not act on the state’s behalf when deciding what to teach. It pointed to the fact that schools like Ben Gamla are proposed by private organizations, governed by boards of private individuals, and given substantial control over their curricula and daily operations. Oklahoma funds and oversees charter schools and calls them public schools. But the judge reasoned that those ties do not make the state responsible for a school’s educational choices. In that respect, Oklahoma charter schools more closely resemble private schools. The court therefore barred Oklahoma from excluding Ben Gamla from its charter-school program solely because of its religious character, concluding that such exclusion violated the First Amendment’s protection against religious discrimination.
Even though Ben Gamla fell short of board approval after its victory in court, the ruling could have consequences beyond Oklahoma. The reach of the decision’s logic will depend on how other states structure their charter-school programs. As the judge cautioned, “other charter school programs with different facts may warrant a different outcome.” Where state officials or school districts exercise more direct control over charter schools’ operations and educational decisions, courts may conclude that a religious charter school would amount to a religious public school, violating the First Amendment. But in states where those decisions remain largely in private hands, the ruling provides a new legal foothold for religious charter-school proposals.
Florida has already moved in that direction. This past April, Florida Attorney General James Uthmeier issued an opinion concluding that the state’s blanket exclusion of religious organizations from its charter-school program violates the First Amendment. He also announced that his office would not enforce laws unconstitutionally excluding religious schools from public funding. A state attorney general’s opinion does not settle the constitutional question, but alongside the Ben Gamla ruling, it may encourage new proposals in Florida — and potentially elsewhere — regardless of whether Ben Gamla itself ultimately opens.
To be sure, religious charter schools are unlikely to replace private Jewish day schools. Charter-school statutes still impose extensive requirements and regulations, especially when it comes to admissions. Oklahoma, for example, requires charter schools — including virtual schools — to be as free and open to students as traditional public schools. Its brick-and-mortar charter schools must use a lottery when eligible applications exceed capacity. They therefore cannot promise the religiously homogeneous student community that many families seek in private Jewish day schools. But, for example, in states with smaller Jewish communities, where enrollment might not sustain a private Jewish school, a tuition-free school organized around Jewish values and traditions could potentially attract enough interest from families of different backgrounds to offer a viable alternative.
The Ben Gamla ruling is a landmark — the first federal court decision clearing a path for a religious charter school. It carries the Supreme Court’s recent decisions against religious discrimination in government funding into new territory, opening the door to an entirely new kind of publicly-funded Jewish school. Monday’s vote shows that removing a constitutional barrier does not mean any particular school will secure approval. Indeed, the three opposing members did not publicly explain their votes, leaving uncertainty ahead, along with the possibility of further litigation and appeals. But even with Ben Gamla’s application still unapproved, the possibility of tuition-free Jewish religious education has taken a significant step forward.
Michael A. 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.
