New efforts to establish religious charter schools are accelerating in several states, as advocates hope to return to the U.S. Supreme Court and finally get an answer about whether such schools pass constitutional muster.
Last year, the justices deadlocked 4-4 in a case over the proposed St. Isidore of Seville Catholic virtual charter school in Oklahoma, with Justice Amy Coney Barrett recused. That outcome affirmed, without setting a nationwide precedent, a state supreme court decision that religious charter schools are barred in Oklahoma by the First Amendment’s prohibition against government establishment of religion.
Advocates for religious charter schools have regarded the lack of resolution as an opening to try again.
“The [U.S. Supreme] Court has made clear that once you start funding private entities, you cannot exclude participants because of their religion,” said Eric Baxter, vice president and senior counsel of the Becket Fund for Religious Liberty, a non-partisan legal group that is representing a proposed Jewish charter school that has applied to operate in Oklahoma.
“We would ultimately go to the Supreme Court” if the application for the Jewish charter school is denied and lower courts rule against the effort, he said.
Alex J. Luchenitser, associate vice president of Americans United for Separation of Church and State, which has been working with the American Civil Liberties Union and other groups in the fight against such schools, said, “We think that the law here is on our side and that the Constitution clearly prohibits religious public charter schools.”
“The other side is hoping this gets back to the Supreme Court,” Luchenitser added. “And they’re hoping Justice Barrett does not have to recuse herself again, and that they get a 5-4 vote in their favor. It’s all very speculative.”
Perhaps. But there are several new efforts backed by religious charter proponents who are willing to speculate. The reward, if they are successful, would be approval for their schools and a major shift in the educational landscape that could permit religious charters in any state with charter schools, which are independently operated public schools.
“Just the chaos or the threat to the way charter schools operate, we think exists again through these cases, so we’re paying close attention,” said Eric Paisner, the chief legal officer of the National Alliance for Public Charter Schools, which opposes religious charters.
New Oklahoma effort centers on a Jewish virtual school
Two of the new efforts involve proposed religious charter schools—the Ben Gamla Jewish Charter School, a virtual school in Oklahoma, and the Wilburforce Academy of Knoxville, Tenn., which seeks to open a Christian brick-and-mortar school.
A third revolves around a “contract” public school in Colorado, which opened last fall and touts a “Christian foundation” to its learning program.
The Ben Gamla application is being advanced by Peter Deutsch, a former Democratic congressman from Florida who opened the first Ben Gamla public charter school in Hollywood, Fla., in 2007 as a Hebrew language and Jewish culture-themed school. The Ben Gamla network now has six charter schools in South Florida that do not teach the Jewish faith but allow students to be released during the school day for religious instruction.
“The schools have consistently performed and been rated at the top 5 or 10% of the public schools, not just charter schools, in the state of Florida,” Deutsch said during a Jan. 12 appearance before the Oklahoma Statewide Charter School Board, which is considering his application.
“The opportunity is probably the best in Oklahoma of any state” in the country, Deutsch said.
The school’s charter application says it seeks to provide an academic program “infused with a Jewish understanding of the human person and grounded in the enduring Jewish values of truth (emet), beauty (yofi), and goodness (tov), as expressed in Jewish thought and tradition.”
It projects opening in the fall of 2026 with 500 students and state funding of $2.6 million, growing to 1,500 students and funding of $8.3 million by 2030.
Oklahoma is home to about 9,000 Jews, by most estimates, or less than 1% of the state population. Some Jewish leaders have questioned the need for such a religious virtual school.
Baxter, the Becket Fund lawyer representing the Ben Gamla effort, said Deutsch has “spent significant time in Oklahoma, meeting with Jewish leaders and Jewish families. There are a lot of people who would like this opportunity.”
On Feb. 3, Americans United, the ACLU, the Education Law Center, and the Freedom From Religion Foundation sent a letter urging the Oklahoma statewide charter board to reject the Ben Gamla application.
“As the Oklahoma Supreme Court recently made clear, Oklahoma charter schools are prohibited from promoting religion to students or coercing students to take part in religious activity, including by incorporating religious teachings into curriculum and co-curricular activities,” the letter says.
The groups also point out that the Ben Gamla school, like St. Isidore before it, demands religious-based exemptions from state anti-discrimination laws and requirements that would allow it to make admissions and employment decisions based on religion, sexual orientation, and gender identity.
“Ben Gamla’s application makes very clear that it plans to comply with antidiscrimination rules applicable to Oklahoma charter schools only to the extent those rules do not conflict with its religious beliefs,” the letter states.
The statewide charter board has put the Ben Gamla application on its agenda for an initial vote next week. The board’s predecessor state agency had granted St. Isidore’s application, leading to a clash with Oklahoma Attorney General Gentner Drummond, a Republican who agreed with opponents that the federal Constitution did not permit religious charter schools. That led to the state high court opinion against St. Isidore and the U.S. Supreme Court case that ended in the 4-4 deadlock.
The statewide board may be sympathetic to Ben Gamla’s application, but board Chairperson Brian Shellem said at the meeting last month that “we will more than likely have to deny their application” because the state high court ruling is binding on the board.
Whatever the vote, a lawsuit from either proponents or opponents appears inevitable.
A Tennessee lawsuit and a Christian school proposal
In Tennessee, there is already a lawsuit over the proposed Wilburforce Academy. The organizers of the Christian school in November sued the 60,000-student Knox County school district in its role as a charter school authorizer, even though the school had not yet filed a charter application.
Filing a charter application would be “futile,” the school said in its suit, because “despite Tennessee’s general commitment to charter-school autonomy, state law makes clear that religious groups cannot participate in the charter-school program.”
Tennessee Attorney General Jonathan Skrmetti, a Republican, issued an advisory opinion in November that the state’s ban on religious charters “likely” violates the First Amendment’s free exercise of religion clause, based on the U.S. Supreme Court’s recent trend of cases giving religious schools greater rights to participate in state choice and scholarship programs.
But the attorney general’s opinion was “tentative and not binding on Knox County,” Wilburforce Academy said in a court filing.
On Feb. 5, the Knox County board of education considered a motion to ask Tennessee’s education commissioner to consider a waiver that would allow Wilburforce to open as a Christian school. The idea appears to have been designed to pass the question to the state level, where officials may or may not have the authority to issue such a waiver.
“I think we’re all a little confused as to why Knox County is being sued at all,” Knox County school board chair Kristi Kristy said at the meeting.
Some board members noted that Wilburforce did not file a charter application by the Feb. 1 deadline to win approval for next school year.
“They haven’t even done the first step,” said board member Anne Templeton. “They started with a lawsuit. ... For that reason, I cannot support pandering to this kind of workaround.”
The motion to ask the Tennessee commissioner to consider a waiver failed.
Wilburforce has asked a federal district judge in Knoxville to rule quickly on its motion for summary judgment that would set aside state laws barring religious charter schools.
“Absent an injunction, defendants will continue to violate Wilberforce’s First Amendment right to a fair opportunity to apply to establish a charter school,” the school says in the filing.
The Knox County board told the court it wasn’t in a position to argue the constitutional issues, but Americans United and its allies recently intervened in the case on behalf of several Knox County residents who oppose the religious charter.
A Colorado public school agency contracts with ‘a Christian foundation’
In Colorado, the Riverstone Academy in Pueblo opened as a K-5 elementary school with some 30 students last year under a contract with the Education reEnvisioned Board of Cooperative Education Services. (Many states have such regional BOCES agencies that serve multiple school districts for such specialized offerings as career and technical education.)
The school facility temporarily closed on Feb. 3 amid health and safety concerns from county officials, but the debate over its religious nature is continuing. It had opened in the fall after getting co-sponsorship from the Colorado Springs and Pueblo school districts.
In October, the Colorado Department of Education wrote to Education reEnvisioned to question the arrangement, saying that Riverstone Academy appears to be “sectarian” and thus ineligible for public funding under state law.
“Public schools are generally required to be nonsectarian in nature,” said the state letter. “Thus, any school that [Education reEnvisioned] operates must be nonsectarian in nature.”
Kenneth Witt, the executive director of the BOCES, responded that the school meets all other requirements and that the U.S. Constitution “prohibits discrimination against Riverstone solely on account of its religious affiliation as such exclusion from a generally available governmental benefit would be unconstitutional.”
Luchenitser of Americans United said his group is researching the Colorado situation, which appears to be aimed at establishing another test case that could reach the U.S. Supreme Court.
“That’s one we’re watching, and everyone is waiting to see what the state is going to do,” he said.
All eyes on Justice Barrett
If any of these or other religious public school experiments reach the high court, all eyes will be on Justice Barrett.
She recused herself from the St. Isidore case, but based on Barrett’s generally right-leaning legal outlook, conservatives seem confident that if a religious charter case reaches the high court and is heard by a full bench, they will prevail.
That was underscored in an exchange last September between Barrett herself and the conservative radio host Hugh Hewitt. He was interviewing her before an audience at the Richard Nixon Presidential Library in Yorba Linda, Calif., about her book, Listening to the Law.
“I am glad that the court—you don’t have to comment—punted on the Oklahoma case, because you were recused,” Hewitt told her, adding that he looked forward to a similar case returning to the court “and I hope that the assignment memo designates you,” meaning that Barrett would be assigned to write the majority opinion to uphold religious charters.
Hewitt quickly moved on as Barrett, with an uncomfortable look on her face, said nothing.
