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The founders of a proposed Jewish charter school in Oklahoma will appear in federal court Wednesday to argue that the school should be able to open even though the state charter board turned down its application.

The National Ben Gamla Jewish Charter School Foundation, Inc, led by former Democratic Congressman Peter Deutsch, the Statewide Charter School Board in March, saying that Oklahoma鈥檚 law requiring charter schools to be nonsectarian qualifies as religious discrimination. 

“Many parents, both Jewish and non-Jewish, want the kind of rigorous, faith-based education Ben Gamla would provide,鈥� said Daniel Chen, an attorney with Becket, a nonprofit law firm focusing on religious liberty. 

The earliest the virtual school could open would be the fall of 2027. 

Ben Gamla is the second religious charter school that has tried to open in Oklahoma, where Republican Gov. Kevin Stitt and former state Superintendent Ryan Walters encouraged the first online Catholic charter school. Last year, a lawsuit over St. Isidore of Seville Catholic Virtual School went to the U.S. Supreme Court, which in a 4-4 tie deadlocked over the question of whether charter schools are private and can, therefore, explicitly teach religion. That leaves the question unanswered, say supporters of religious charter schools. Similar efforts in other states, including Tennessee and California, mean there are many routes for returning the issue to the high court.

In the Ben Gamla case, U.S. District Judge David Russell, for the Western District of Oklahoma, will consider two issues. In addition to asking the court to allow the school to open while the case proceeds, Ben Gamla鈥檚 organizers also want the court to block Oklahoma families, now 鈥渋ntervenors鈥� in the case, from accessing information about the school, like proposed admission and student conduct policies.

鈥淚ntervenors are going on a fishing expedition, seeking sensitive information about schoolchildren, donors and the like,” Chen said.

But attorneys representing the families, , say any planning documents should be publicly available.

鈥淭o what extent will those policies discriminate against students or employees based on religion or sexual orientation or gender identity?鈥� asked Alex Luchenitser, vice president and associate legal director for Americans United for the Separation of Church and State. 鈥淗ow religiously coercive will school operations be?鈥� 

In June, Russell granted requests from two groups of parents to intervene in the case. They argue that the school would force taxpayers to subsidize religion. Because the charter school board is not opposed to the Ben Gamla school in theory and even welcomed the lawsuit, that leaves the parents, including those whose children attend charter schools, as 鈥渢he only litigants seeking to defend the constitutionality鈥� of the state law, he wrote.

The judge is expected to rule in a few weeks, but Luchenitser said he could issue a decision on the documents sooner.

Luchenitser is also Americans United鈥檚 lead attorney on a federal case in Tennessee in which , a proposed 鈥淐hrist-centered鈥� charter school in Knoxville, is suing the Knox County Schools because the district wouldn鈥檛 allow the organizers to submit a charter application. 

U.S. District Judge Charles Atchley Jr., for the Eastern District of Tennessee, has set a trial date in that case for the week of Jan. 12. As in Oklahoma, the judge allowed a group of community members to intervene in the case when the school board said it wouldn鈥檛 take a position on Wilberforce鈥檚 legal argument. The organization says that while the state supports families who want a religious education for their children through its education savings account program, it shows 鈥渉ostility鈥� toward religious charter schools.

鈥楴ot freestanding鈥�

In Colorado, a over a Christian 鈥渃ontract鈥� school, similar to a charter, was another potential test case for faith-based public schools, But the 30-student Riverstone Academy shut down permanently at the end of last school year after health and safety violations as its facility. The state legislature also , making the school ineligible for funding. 

In a fourth case, the U.S. Court of Appeals for the Ninth Circuit ruled earlier this year that a homeschool program in California that operates under the umbrella of the Blue Ridge Academy charter school is still a public school, and, therefore, can鈥檛 practice religion. Parents and grandparents sued the state when officials said using public funds to purchase religious curriculum materials would violate state law. 

Liberty Justice Center, the conservative law firm representing the families, has until Aug. 20 to to the Supreme Court. 

But while supporters of religious charter schools plan their legal strategy for getting the issue back before the conservative justices, some advocates are sharpening arguments saying that charters are, without question, public schools.

According to a from the National Alliance for Public Charter Schools, these schools of choice 鈥渁re not freestanding private institutions.鈥� They exist only because of state action and operate with public resources.

Kevin Welner, an education and law professor at the University of Colorado Boulder, called the paper a 鈥渧aliant effort,鈥� but one unlikely to sway the court the next time they hear a case over religious charter schools. 

The only reason the St. Isidore case ended in a tie is because Justice Amy Coney Barrett recused herself. While she didn鈥檛 give a reason, Barrett is close friends with a law professor who advised the school鈥檚 founders. That won鈥檛 happen a second time, and given that Barrett typically sides with those wanting on religious expression. Welner said he鈥檚 convinced that the Alliance 鈥渨ill lose that argument.鈥�

Along with Carol Burris of the Network for Public Education and Preston Green of the University of Connecticut, in a policy paper that if the court ultimately rules that charter schools are private entities, such schools will not only be able to practice religion, but potentially ignore other 鈥渂asic laws governing public schools,鈥� like open meetings requirements and conflict-of-interest rules.

To prevent that possibility, the three recommend that states should have districts govern charters instead of independent nonprofit boards. This change, they said, would make charters 鈥渦nambiguously governmental entities鈥� that are 鈥渇ully subject to constitutional requirements and civil rights laws.鈥�

Watching Florida

Starlee Coleman, president and CEO of the Alliance, rejected the idea, saying their proposal 鈥渨ould open the door to more regulation that will basically turn charters into district schools.鈥� The Alliance and other choice advocacy groups, like the , favor charter laws that allow for a variety of authorizers, including nonprofits.  

Meanwhile, in Florida Attorney General James Uthmeier issued stating that the First Amendment doesn鈥檛 prevent states from 鈥渆ncouraging鈥� religion and that excluding religious groups from opening charter schools violates the Constitution. 

So far, the Alliance hasn鈥檛 seen any religious groups trying to launch charters based on Uthmeier鈥檚 statements, Coleman said.

鈥淏ut it doesn鈥檛 mean we won鈥檛,鈥� she said. 

After all, Deutsch represented Florida in the House from 1993 to 2005 and that鈥檚 where he built a successful network of secular charter schools that teach Hebrew language and culture. In 2023, he told 社区黑料 that if he had known education savings accounts and private school choice programs were about to take off, he would have founded a 鈥淛ewish voucher school.鈥�

鈥淲e know there are people in Florida who are interested in advancing this issue,鈥� Coleman said. 鈥淲e are expecting that Florida could be the next state with an active case.鈥�

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