A federal court heard oral arguments on Aug. 5 about whether an Oklahoma law banning religious charter schools violates the First Amendment’s protection of the free exercise of religion.
Oklahoma established a charter school system in 1999, which provides public funds for privately run K–12 schools to which parents can send their children instead of a public school operated by a school district. The law only allows “nonsectarian” applicants, which prevents any participation from schools that have a religious identity.
In 2023, the Oklahoma Statewide Charter School Board (SCSB) approved an application from a proposed Catholic charter school — St. Isidore of Seville Catholic Virtual School — which led to a legal challenge from Oklahoma Attorney General Gentner Drummond, who opposed religious charter schools.
The Oklahoma Supreme Court sided against the school, finding that charter schools are public schools and that public schools must be secular. St. Isidore appealed this to the U.S. Supreme Court, but that resulted in a 4-4 deadlock with no majority opinion because Justice Amy Coney Barrett had a conflict of interest and recused herself.
Amid no clear guidance from the federal courts, a Jewish organization — National Ben Gamla Jewish Charter School Foundation — filed an application to set up a charter school, which was denied. The group, represented by lawyers at the Becket Fund, filed a new lawsuit and asked a federal district court to require the SCSB to consider religious applicants.
“Oklahoma makes room in its charter program for schools of all shapes and sizes, from those focused on science and fine arts to language immersion and classical education,” Daniel Chen, a Becket attorney representing the Jewish foundation, said in a statement.
“The one it refuses to make room for is a faith-based school,” Chen added. “That is religious discrimination, plain and simple, and the state deserves a failing grade for it.”
Chen told EWTN News that Becket is asking the federal court to immediately allow National Ben Gamla Jewish Charter School Foundation to set up a charter school, citing U.S. Supreme Court precedent that requires government programs to allow religious institutions the same access as secular institutions.
“They’re private actors,” he said. “And because they’re private actors, they cannot be excluded from participating in a public benefits program.”
Chen said the federal district court is not bound by the precedent of the Oklahoma Supreme Court because that is a state court, so it could rule in favor of the school. He also said if the case goes to the U.S. Supreme Court, he hopes Barrett can weigh in to break the 4-4 deadlock.
“We’re hoping that [for] our case, there wouldn’t have to be any recusals,” he said.
School board’s hands are tied
Although the charter school board denied the application from the National Ben Gamla Jewish Charter School Foundation, one of its lawyers at First Liberty Institute explained to EWTN News that its hands are tied by the statute and the Oklahoma Supreme Court’s decision.
“They’re following that order,” said Hiram Sasser, executive general counsel for First Liberty and the lawyer representing SCSB. “But [they] would be happy if the federal court didn’t [require the school board] to engage in that kind of discrimination.”
Sasser said the SCSB does not want to exclude an applicant “simply because it’s religious” and would rather evaluate applicants “just based on the merits.” But he said the order “makes them exclude religious schools just because they’re religious.”
“They want to maximize all of the various choices and opportunities for parents,” he added.
Sasser said he hopes the question goes to the U.S. Supreme Court again so “we’ll get an answer — a real answer.” He said it would provide more clarity for the school board, which “needs an answer.”
John Meiser, director of the Lindsay and Matt Moroun Religious Liberty Clinic at the University of Notre Dame and the lawyer who represented St. Isidore at the Supreme Court, told EWTN News that the question ultimately comes down to whether charter schools are private or public institutions.
In Oklahoma, he said charter schools “are called public schools” and that label “introduces a confusion that I don’t think would be present if they chose any other word.”
He said Supreme Court precedent is clear that religious institutions must have equal access to government programs available to private institutions, but if a charter school is a “government school,” that “doesn’t apply” because the government “doesn’t and can’t run religious schools.”
In spite of the label, Meiser said charter schools in Oklahoma are “formed and designed and run by private groups” and people who work there “are private employees.” He said the structure “looks just like a government contract” and funding from the government “doesn’t turn all those private contractors into the government itself.”
“The dispute is really just about, ‘Well is a charter school in some way different?’” he said.
Although Meiser said he is not aware of any ongoing Catholic efforts to recreate a charter school, he said that a Supreme Court ruling in favor of the National Ben Gamla Jewish Charter School Foundation’s constitutional arguments for equal access “would presumably apply to all religious operators of schools, and so it would open the door to a Catholic charter school or other religiously based charter school.”
Attorney general stands firm
Drummond, who remains Oklahoma’s attorney general, is standing firm in opposing the creation of religious charter schools and is fighting against National Ben Gamla Jewish Charter School Foundation’s efforts.
“This matter was resolved when the state Supreme Courtʼs ruling to prevent taxpayer funded religious charter schools was upheld by the U.S. Supreme Court last year,” Leslie Berger, press secretary for the attorney general’s office, told EWTN News.
Drummond has also criticized the charter school board in public statements surrounding this legal battle in March, accusing the SCSB of “playing politics with the taxpayers’ money” and alleged it “manipulated the record [about why National Ben Gamla Jewish Charter School Foundation’s application was rejected] to make that lawsuit easier to lose — not win.”
“A state agency that deliberately hobbles its own legal position is not doing its job — it is betraying Oklahoma taxpayers,” he said. “I will not allow that.”
Drummond has garnered support from the American Civil Liberties Union (ACLU) and the Freedom From Religion Foundation (FFRF) for opposing the creation of religious charter schools.
Attorneys for FFRF are representing seven Oklahomans who oppose their tax money being used to support religious charter schools.
“The federal court should rule according to constitutional principles,” FFRF Co-President Annie Laurie Gaylor said in a statement. “A religious public charter school has no place in our secular public education system.”
It’s unclear when the federal court will issue its ruling, but National Ben Gamla Jewish Charter School Foundation has asked the judge to issue a preliminary injunction against the state so it can begin operating a school while the litigation plays out.
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