Legal battle over Jewish charter school begins in Oklahoma City federal court

OKLAHOMA CITY — A second attempt to open the nation’s first publicly funded religious charter school landed in an Oklahoma courtroom on Wednesday in what could be another step toward returning the issue to the U.S. Supreme Court.

At issue Wednesday was whether the Oklahoma Statewide Charter School Board acted constitutionally when it twice denied Ben Gamla Jewish Charter School’s request to open and operate using taxpayer funds.

Board members said a 2024 Oklahoma Supreme Court decision rejecting a similar request from a Catholic charter school prevented them from approving the religious school, which intends to provide a state-funded education that includes the teachings of the Jewish faith.

The school’s founders sued the board in Oklahoma City federal court over the denial. Their attorneys told a federal judge on Wednesday that the Oklahoma Supreme Court decision violated the free exercise the school’s religion. But Oklahoma families and taxpayers, who intervened in the case, argued that charter schools are an arm of the government and therefore must be nonsectarian.

Federal District Judge David L. Russell will decide in the coming weeks or months whether to grant the school’s request for a preliminary injunction, which would allow the school to establish a charter contract with the state and proceed toward opening.

Attorneys on multiple sides of the case agreed Russell’s decision is a likely starting point for appeals that could ultimately land the issue before the nation’s highest court again.

The U.S. Supreme Court heard oral arguments on the Oklahoma Catholic charter school case last year with Justice Amy Coney Barrett recused. The remaining justices split 4-4 on the case, which allowed the Oklahoma Supreme Court ruling to stand.

“The case that’s before your honor today seems to be aimed squarely at returning to the (U.S.) Supreme Court,” said Alex Luchenitser, an attorney representing some of the Oklahomans opposing the school, during Wednesday’s hearing.

Russell’s decision on the preliminary injunction could be appealed to the Tenth Circuit Court of Appeals. 

The appeals process will continue “probably all the way up until we break the 4-4 tie at the Supreme Court,” said Hiram Sasser, an attorney representing the Statewide Charter School Board, after the hearing.

Attorneys for the state board argued Wednesday in support of the Jewish school. They said the Oklahoma Supreme Court’s decision forced the board to commit “religious exclusion” and deny the school’s application to open.

The school’s founders, led by former Florida U.S. Rep. Peter Deutsch, applied to the board for approval to establish an online charter school in Oklahoma for students in grades K-12. The board voted to reject the school in February and March, citing its religious component both times.

Deutsch also founded a network of non-religious Hebrew-English charter schools in Florida that share the name Ben Gamla.

“My clients have looked at the Oklahoma charter school program and believe that it is really an excellent program and would offer the benefits for the type of education that they want to offer,” said Daniel Chen, an attorney representing Deutsch and the school, after the hearing.

In the courtroom, Chen contended his clients’ constitutional rights were violated when they were denied the chance to access state charter school funding solely because of the school’s religious character. 

Although charter schools have long been considered public, he said they’re actually privately operated entities contracting with the state to provide educational services to families who freely choose to enroll. Other private schools or private entities are allowed to benefit from public programs without having to give up their religious objectives, he and other attorneys said.

But a group of mostly Jewish Oklahomans, who oppose the school, and their attorneys contended that charter schools are state actors because they are deeply “entwined” with government control and carry out an exclusively governmental function of free, public education.

Russell, the federal judge, acknowledged the public or private nature of a charter school is a core issue to the case.

“Right now, Ben Gamla is private,” the judge said during the hearing. “The question is whether it will become public by becoming a charter school.”

Multiple Jewish organizations and synagogues in Oklahoma have raised concerns that Ben Gamla’s founders failed to meaningfully consult the local Jewish community before attempting to open the school. 

Had they done so, they “would have been made aware that Oklahoma is already home to many Jewish educational opportunities,” the local groups said in a January joint statement.