The Oklahoma Statewide Charter School Board didn鈥檛 say why it denied the application, but a lack of interest from families in the school, rather than its religious mission, might have played a role.

In emails to several Oklahoma Jewish leaders, Peter Deutsch, founder of the nonprofit that would run Ben Gamla Jewish Charter School, said his 鈥渁spirational enrollment goal鈥� for the first year was 10 students in grade nine through 12 鈥� only a quarter of the 40 students he projected in November and a tiny fraction of the roughly 400 K-12 students projected in the initial application. 

Ben Gamla 鈥渓acks community support鈥� and 鈥渃annot be financially or operationally viable,鈥� organizations opposing the school said in a to the board. They include Americans United for the Separation of Church and State and the American Civil Liberties Union.

To most charter school advocates, the Oklahoma Statewide Charter School Board made the right call in rejecting an application for a school that doesn鈥檛 appear to be responding to a demand. 鈥淓very charter application must hold up academically, financially and operationally,鈥� Starlee Coleman, president and CEO of the National Alliance of Public Charter Schools, said in a statement. 

One of Deutsch鈥檚 emails went to Rabbi Dan Kaiman of Tulsa, who is among the Oklahomans to keep the school from opening. He was also one of several Jewish leaders who last December said the school 鈥渨ould undermine both religious freedom and public education.鈥� The board鈥檚 move, however, may further escalate the legal battle over the school. 

鈥淭he board decision openly defies a federal court ruling that religious schools cannot be excluded from public programs,鈥� said Daniel Chen, counsel at Becket, a nonprofit law firm focused on religious freedom and lead attorney for the school. 鈥淏en Gamla is asking only for equal treatment and 鈥� if necessary 鈥� will seek a court order to enforce it.鈥�

鈥楾ruckload of litigation鈥�

The Ben Gamla application is the second attempt to establish the nation鈥檚 first religious charter school in Oklahoma. 

In 2023, a now-defunct virtual charter school board narrowly approved an application for St. Isidore of Seville Catholic Virtual School. That action set off a two-year legal battle that ended last year when the U.S  Supreme Court deadlocked over whether such schools are legal under the Constitution. Justice Amy Coney Barrett recused herself from the case, which led to the 4-4 tie and the likelihood that a similar case would work its way back to the high court. 

This is also the second time the board has denied Ben Gamla鈥檚 application. In March, when the board voted against it, Chairman Brian Shellem said the members were bound by the Oklahoma Supreme Court鈥檚 2024 ruling that public funding for a religious school would violate state law. That decision sparked the school鈥檚 lawsuit and the move by Oklahoma parents, educators and religious leaders to intervene in the case.

On Monday, Shellem was among the four members who voted to approve the application. Under the bylaws, any motion requires five affirmative votes to pass.

鈥淚 think we made a mistake as a board,鈥� he said during the meeting. 鈥淲e are opening ourselves up to a truckload of litigation.鈥�

Deutsch, a Democrat who represented Florida in Congress from 1993 to 2005, founded a successful network of secular charter schools in his home state that teach Hebrew language and culture. But as an advocate for Jewish education, he saw an opportunity when Oklahoma鈥檚 virtual charter school board approved St. Isidore鈥檚 application.

Before the Supreme Court heard that case, he told 社区黑料 that his goal was to open 100 Jewish charter schools across the country. But he has struggled from the beginning to build support. When he presented his plan to the charter board in January, he said he had only talked with in Oklahoma about his idea.

In his letter to Kaiman, he asked the rabbi to consider applying to become the school鈥檚 principal and said one of the school leader鈥檚 responsibilities would be to recruit high school students to convince parents that the school would offer 鈥渁n outstanding educational opportunity.鈥�

鈥楢 hunger for educational options鈥�

One legal expert described the lack of students lining up to enroll in Ben Gamla as a 鈥渃hicken and egg problem.鈥�

鈥淚s the lack of demand preventing supply or vice versa?鈥� asked Ilya Shapiro, a senior fellow and director of constitutional studies at the conservative Manhattan Institute. 鈥淚 think there’s a hunger for educational options.鈥�

The debate swirling around St. Isidore, Ben Gamla and Wilberforce Academy, a proposed Christian charter school in Tennessee, centers on whether charter schools are government entities, like traditional public schools, or whether they are private because nonprofit organizations run them. In the Catholic charter case, the state Supreme Court held that St. Isidore violated the First Amendment鈥檚 prohibition on government establishing a religion as well as the state constitution.

But in the Ben Gamla case, Judge David Russell, a Reagan appointee who sits on the U.S. District Court for the Western District of Oklahoma, that 鈥渁n otherwise private actor is not transformed into a government entity merely because it has been awarded a government contract.鈥�

John Meiser, part of the legal team that took the St. Isidore case to the Supreme Court, said the fact that Ben Gamla would practice Judaism shouldn鈥檛 disqualify it from opening a charter school.

鈥淭hese could be really valuable educational resources in a state where that educational community is presently not very visible,鈥� said Meiser, director of the Lindsay and Matt Moroun Religious Liberty Clinic at Notre Dame Law School. But he added, 鈥淭he state would presumably want to see some critical mass of support in the community.鈥�

The idea for a Jewish charter school in Oklahoma could gather steam following last week鈥檚 hotly contested vote to approve a virtual Catholic charter school in the state.

鈥淭his is the logical progression in terms of what the Constitution says,鈥� said Peter Deutsch, who veers sharply from his party on the issue. 鈥淚 still believe in a lot of things the Democrats believe in, but school choice is a civil rights issue in this generation.鈥�

A Jewish charter would allow Deutsch to offer families something he couldn鈥檛 when he founded Ben Gamla Charter School in Hollywood, Florida, in 2007 鈥� an education not only focused on Hebrew language, culture and history, but the tenets of Judaism. 

It also opens a window into a sometimes uncomfortable intersection of church, state and market forces as Oklahoma pushes the nation into uncharted legal territory.

鈥淚 always know it’s a hot topic when my phone blows up before it’s on the cover of the Wall Street Journal or CNN,鈥� Maury Litwack, founder of Teach Coalition, said Friday during about the Catholic charter. With groups in Florida, Maryland, New Jersey, New York and Pennsylvania, the coalition is affiliated with the Orthodox Union, which supports synagogues and youth programs. 

Deutsch visited Oklahoma in January to meet with Jewish leaders. But not all groups share his interest. After last week鈥檚 vote, the Jewish Federation of Greater Oklahoma City, a nonreligious group, called the charter board鈥檚 decision unconstitutional. 

The Statewide Virtual Charter Board voted 3-2 to approve the St. Isidore of Seville Catholic Virtual School despite warnings from Attorney General Gentner Drummond that it violates state law.

Drummond is currently . In his opinion, a board member added just three days before the decision technically shouldn鈥檛 have voted because state law says new appointments don鈥檛 take effect until Nov. 1. Bob Bobek, a former state board of education member, replaced Barry Beauchamp, a retired superintendent. Before the vote, Robert Franklin, the board鈥檚 chair, asked Bobek to recuse himself, but he refused. 

The possible invalidation of the vote would likely be only a temporary setback because the Archdiocese of Oklahoma City and the Diocese of Tulsa can appeal to the state board. Brett Farley, executive director of the Catholic Conference of Oklahoma, a policy organization, said he has even 鈥渕ore confidence in that scenario鈥� because Gov. Kevin Stitt, who the application, appointed the board members.

The case for religious charters could also get considerable ballast if the U.S. Supreme Court agrees to hear a that asks whether charter schools are public or private. On June 22, the U.S. Supreme Court will discuss whether to hear Charter Day School Inc. v. Peltier, in which a charter school argues that because it鈥檚 a nonprofit, it should be free to enforce a dress code requiring girls to wear skirts. 

Both charter leaders and advocates for religious freedom say the court could help settle the debate over whether charters can explicitly teach religion. If the court declines to hear it, a decision by the U.S. Court of Appeals for the 4th Circuit that charters are public schools acting on behalf of the state would stand.

鈥淭he 4th Circuit is a major loss鈥� for those pushing for religious charters, said Derek Black, a University of South Carolina law professor. 鈥淎nd if the Supreme Court declines to hear it, that is a major affirmation of that loss.鈥�

But others agree with Deutsch that some parents want publicly funded educational options that include faith-based schools.  

鈥淵es, we have to follow the law,鈥� Lynn Norman-Teck, executive director of the Florida Charter School Alliance, said about the that charters be nonsectarian. But she added that charter schools 鈥渁bsolutely鈥� have to understand parent demand 鈥渁nd the evolution of education.鈥�

She remembers when Deutsch was trying to convince the Broward County Board of Education to approve the first Ben Gamla school, two years after he left Congress following a failed Senate run.

Some worried it would be hard to divorce the instruction of Hebrew, the language of Judaism, from teaching the faith itself.

Eleanor Sobel, then a school board member and later a state senator, was among the most outspoken opponents, telling reporters that it would be to monitor whether Judaism was actually part of the curriculum. Even after it opened, the board told the school to until officials were satisfied that teachers weren鈥檛 advocating religion. The restriction a few weeks later.

Norman-Teck said she doesn鈥檛 hear those concerns anymore and that Ben Gamla, now a network of six schools, serves a diverse population including Black and Caribbean students. 

鈥淭hey proved the board wrong,鈥� she said. 鈥淭hey were very careful that that line wasn鈥檛 crossed.鈥�

But a lot has changed in Florida in 16 years. If he was developing the school today, Deutsch said he would establish 鈥渁 Jewish voucher school鈥� because of the explosion of private school choice in Florida. In fact, in Florida鈥檚 Jewish day schools were receiving a state scholarship even before Gov. Ron DeSantis signed legislation in March that made all students eligible for a voucher or education savings account worth about $8,500.

Ironically, an Oklahoma charter would allow Deutsch to accomplish something his critics in Florida feared he would do there: create a public school with an explicitly Jewish curriculum.

With the political hurdle in Oklahoma largely eliminated, Deutsch said his biggest problem might be practical: finding enough interested Jews to fill a school.

鈥淚 spoke with every Jew I could find near Oklahoma City,鈥� Deutsch said. Currently, that鈥檚 a small number; of Oklahoma鈥檚 nearly 4 million residents are Jewish. But he added, 鈥淭here are families that I believe would move to Oklahoma if there was a Jewish religious charter school.鈥�

Friday鈥檚 virtual webinar featured Michael Helfand of Pepperdine University and Notre Dame University鈥檚 Nicole Garnett 鈥� both law professors who focus on religious liberty. Garnett argues religious organizations that want to open charters should be able to receive public funds, much like faith-based adoption agencies and soup kitchens.

But Helfand is less convinced that if the Supreme Court takes up the North Carolina case, justices will rule that charters are private. Despite recent decisions favoring public funds for religious schools, he expects the court will decide it鈥檚 time for some 鈥渂oundaries on this kind of general momentum.鈥�