A Jewish group based in Florida is seeking permission to operate the nation’s first taxpayer-funded online religious charter school in Oklahoma.
The National Ben Gamla Jewish Charter Foundation notified the Oklahoma Statewide Charter School Board on Nov. 3 of its intent to apply for taxpayer funding for a virtual school initially serving about 40 students in grades 9 through 12. Its attorney told The Washington Post it will file a full application by year’s end.
That development, legal experts said, could restart a bitter fight over government support for religious schools that reached the U.S. Supreme Court this year.
The nation’s high court deadlocked, 4-4, leaving in force an earlier Oklahoma Supreme Court ruling that barred state funding for a Catholic online charter school, St. Isidore of Seville Catholic Virtual School. The state court found the school would violate Oklahoma law, the state constitution and the U.S. Constitution.
Now, Ben Gamla and its lawyers are gearing up for their own attempt to remake key legal precedents regarding religion in public schools and the separation of church and state.
“We’re prepared to take it to the Supreme Court,” said Eric Baxter, vice president and senior counsel at the Becket Fund for Religious Liberty, which is advising Ben Gamla.
Rachel Laser, president of Americans United for Church and State, sees the Ben Gamla effort as a clear attempt to lay a legal foundation for taxpayer-funded religious schools.
“If the school is approved, Americans United is prepared to do whatever it takes to protect the religious freedom of Oklahoma families,” said Laser, whose group sued over St. Isidore’s earlier application. “We’ll go right back to court.”
Officials in Oklahoma appear split on the matter.
Brian Shellem, who chairs the statewide charter school board, said Monday that he couldn’t comment because Ben Gamla had not yet formally applied for public funding.
“I’m not going to prejudge it,” he said. But he added that “we need to do a better job educating our kids in the state of Oklahoma, and I believe we should ask for all hands on deck. Regardless of people’s faith, we need higher academic outcomes.”
Shellem was appointed to the state board by Gov. Kevin Stitt (R), who publicly supported St. Isidore’s. Stitt’s office did not respond to a request for comment on Ben Gamla.
Leslie Berger, a spokesperson for Oklahoma Attorney General Gentner Drummond (R), referred back to the state Supreme Court ruling in the St. Isidore’s case. Drummond had tried to block St. Isidore’s from receiving state money.
“This matter has already been resolved after the state Supreme Court’s ruling to prevent taxpayer funded religious charter schools was upheld by the U.S. Supreme Court earlier this year,” Berger said. “Our office will oppose any attempts to undermine the rule of law.”
Ben Gamla was founded by Peter Deutsch, a Democratic former U.S. representative from Florida, in 2007. It now operates several secular, Hebrew-English charter schools in South Florida.
“Ben Gamla envisions Oklahoma students gaining a rigorous, values-based education that integrates general academic excellence with Jewish religious learning and ethical development,” reads the letter of intent the school’s backers sent to Oklahoma officials, adding there will be “daily Jewish religious study.”
Deutsch supported St. Isidore’s during its legal fight, writing a friend of the court brief in a personal capacity. He has also listed Brett Farley, executive director of the Catholic Conference of Oklahoma, as a founder of Ben Gamla.
Meanwhile, A.J. Ferate, an Oklahoma attorney who helped file Ben Gamla’s paperwork in June to operate as a nonprofit in the state, represented the state’s former schools superintendent and the state education department in legal matters supporting St. Isidore’s application.
Farley did not respond to a request for comment. Ferate declined to speak on the record.
Baxter, Ben Gamla’s attorney, said his client and St. Isidore’s backers are not working together.
If Ben Gamla follows through on its plan to formally apply for Oklahoma funding by the end of this year, Baxter said the Oklahoma charter board will probably vote on the application in January or February. He expects they will reject the application, in deference to the recent Oklahoma Supreme Court decision.
From there, Baxter said, Ben Gamla would probably file a lawsuit in Oklahoma federal court.
Legal experts watching the matter suspect that if Ben Gamla follows the legal path trod by St. Isidore’s to the U.S. Supreme Court, it could produce a different result than the ruling on the Catholic school.
In that case, the high court deadlocked in part because Justice Amy Coney Barrett recused herself. Barrett didn’t explain her decision, but The Post reported it was likely because of her ties to a legal clinic at Notre Dame Law School that spent years forming the legal strategy behind that case.
The clinic has no ties to the Ben Gamla effort, Baxter said.
Given that, a potential lawsuit over the proposed Jewish charter school “does seem like a case that could provide us an answer,” said Michael Helfand, the Brenden Mann Foundation Chair in Law and Religion at Pepperdine University.
Some advocates for charter school education are worried that pushing for religious charter schools is a step too far, however.
“There was a time where I thought ‘Hey, religious charter schools, this would be great!’” said Michael J. Petrilli, president of the Thomas B. Fordham Institute, a conservative education think tank.
But he said he now thinks setting a legal precedent that allows faith-based charter schools nationwide could backfire, by making blue states less open to allowing any charter schools at all.
“It could put the charter movement in great peril,” Petrilli said.
The news of Ben Gamla’s plans also has reanimated local activists, especially the Jewish community that spoke out against the St. Isidore school.
“It’s never been good for the diasporic Jews when there is commingling of religion and state,” said Rabbi Dan Kaiman, who leads one of the state’s largest synagogues, the 500-family Congregation B’nai Emunah in Tulsa.
Kaiman is heading a group of statewide Jewish leaders who are preparing to send a letter opposing Ben Gamla to the Statewide Charter School Board, which will decide the school’s fate.
During the first Sabbath service after news of Ben Gamla’s effort began circulating, Kaiman spoke about it from the pulpit.
“We can be proud of Judaism and committed to Jewish education while also recognizing the value and safety of maintaining clear boundaries between religious identity and state power,” he said.
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