Oklahoma lawsuit spotlights religious charter schools again

Peter Deutsch founded his first Ben Gamla Charter School in Florida almost two decades ago. The former Democratic congressman set up his schools to combine secular coursework with daily Jewish religious studies, and he has since expanded the network to four locations across Florida. Now, he’d like to open such a school in Oklahoma.

But when Deutsch asked the Oklahoma Statewide Charter School Board for permission to open a statewide online charter school in Oklahoma in 2026, the board denied him. It cited a recent state court ruling that bars religious charter schools from public funding.

Last Tuesday, the Deutsch-founded National Ben Gamla Jewish Charter School Foundation sued Oklahoma’s board and the state attorney general in federal court. The foundation contends that excluding religious charter schools is discrimination that “violates the Constitution several times over,” challenging a 2024 Oklahoma Supreme Court decision that later ended in a 4-4 tie at the U.S. Supreme Court. Legal experts say last week’s lawsuit could give the Supreme Court another opportunity to address publicly funded religious charter schools, potentially paving the way for such schools to open across the United States. But some experts warn that allowing religious charter schools would kick off a new set of legal questions and could even restrict the school choice movement.

“If it procedurally gets out of the Oklahoma system, I think it’s very likely that the Supreme Court will take it,” said Ilya Shapiro, the director of constitutional studies at the Manhattan Institute.

Deutsch grew up attending private schools but didn’t know much about Judaism until his 20s. He hoped his Ben Gamla charter school system could improve access to Jewish education while teaching future generations in America what it means to be a Jew.

Ben Gamla submitted its application to open a virtual school in Oklahoma serving kindergarten through 12th grade in December 2025. In February, the board voted unanimously to deny the charter school’s application. One member said that any issues with Ben Gamla’s application were “immaterial to the discussion” because the board’s hands were tied by a 2-year-old ruling from the Oklahoma Supreme Court.

In 2023, the board approved the application of another religious school, St. Isidore of Seville Catholic Virtual School. The board said it could join Oklahoma’s more than 30 privately run charter schools.

But Oklahoma Attorney General Gentner Drummond sued the Statewide Charter School Board, arguing that funding St. Isidore violated the Oklahoma Charter Schools Act’s prohibition against public funding for sectarian schools. St. Isidore contended that funding resources available to all can’t be denied to some solely on the basis of religion.

The Oklahoma Supreme Court sided with Drummond in 2024, and the U.S. Supreme Court issued a split 4-4 decision in an appeal the following year. (Justice Amy Coney Barrett recused herself from the case.) The tie at the nation’s highest court left the state court decision in place and provided no federal guidance on whether charter schools could receive public funds.

The Oklahoma Supreme Court ruling put the board in a “difficult position” when it came to Ben Gamla, Board Chairman Brian Shellem said in a news release in February.

“We are unfortunately bound by the Oklahoma Supreme Court ruling from 2024, even if we disagree with it,” Shellem said. “Merit should be the deciding factor if a charter is awarded to an applicant. … Alienating proven, successful partners runs contrary to us achieving that goal, which is why this deserves resolution at the highest level with the U.S. Supreme Court.”

While verbally the board only listed the court’s ruling to explain its denial, it sent a formal rejection letter to Ben Gamla in February that listed nine additional reasons.

Ben Gamla submitted an updated application addressing these reasons, but in March, the board again denied the school’s revised application. Board member Skyler Lusnia said that while the new application resolved nine out of the 10 original concerns, it didn’t fix the primary issue: the school’s religious nature.

Other lawsuits complicate the Ben Gamla case. Drummond, the state attorney general, also sued the board, accusing it of trying to rig the legal fight to go to the U.S. Supreme Court. Drummond’s March 11 motion alleged that the board engineered its vote so the rejection would solely focus on Ben Gamla’s religious character, which could bolster the school’s federal legal case. He asked a state district judge to intervene and asked the board to issue a new rejection letter detailing all of the reasons the proposal was deficient.

“A state agency that deliberately hobbles its own legal position is not doing its job—it is betraying Oklahoma taxpayers. I will not allow that,” Drummond said in a statement. “I will not allow this Board to rig the record at taxpayers’ expense.”

Courts need to protect Oklahoma’s right to have religious charter schools, said Eric Baxter, an attorney at Becket Fund for Religious Liberty, which represents Ben Gamla. The state already has a variety of charter schools, including one focused on the culture and spiritual aspects of Native Americans.

“You can have all kinds of schools in Oklahoma, you just can’t have a religious school,” Baxter said. “You can be the Freedom from Religion Foundation and start a school, you can be Proud Boys and start a school, but if you’re Jewish, you can’t have a Jewish school.”

Baxter said a ruling in favor of Ben Gamla could benefit students by opening up more educational opportunities while also protecting the First Amendment rights of organizations. The U.S. Supreme Court has three times upheld the rights of religious organizations to access generally available resources, he said.

“Oklahoma got it wrong, and a federal court can correct that for purposes of this particular school,” Baxter said. “This is a win-win for everyone. It’s a win for the Jewish community, it’s a win for people who want more diverse educational options. It’s a win that respects the free exercise clause.”

Representing the Oklahoma Statewide Charter School Board, First Liberty Institute attorney Holly Randall said the board was simply following the state Supreme Court in its denial. “If it weren’t for the ban on religious charter schools under Oklahoma state law, the board would have approved Ben Gamla’s application,” Randall said.

But Ben Gamla has faced opposition from several groups over its application. In January, several Jewish community leaders spoke out against the prospective school. They alleged that the state already had multiple Jewish educational opportunities and that Ben Gamla’s leaders didn’t engage in meaningful dialogue with the state’s Jewish communities before applying.

Groups such as the American Civil Liberties Union and the Freedom From Religion Foundation have also urged the board to reject Ben Gamla’s application. In a February letter, the ACLU and a coalition of groups said Ben Gamla’s proposed charter school would violate state and federal law by indoctrinating students in a specific religion.

The case has big implications for how Americans interact with the separation of church and state, said David Griffith, the national research director at the Thomas B. Fordham Institute, an education policy advocacy group. Charter schools are defined as public schools in the states where they exist, he noted.

Some in the charter school movement worry that allowing religious charter schools could actually hinder school choice, Griffith explained. In primarily Democratic states, governments might move to limit charter schools if religious ones are allowed, he said. Religious charter schools would also raise concerns about whether these “public” schools could have policies against hiring staff or accepting students who identify as LGBTQ.

“It would raise a whole new series of questions that would be very thorny,” Griffith said. “It would be very difficult for folks who are involved with the charter school movement to work through.”