Federal Judge Blocks Oklahoma Religious Ban On Jewish Charter School Bid

Authored by Matthew Vadum via The Epoch Times (emphasis ours),

A federal judge in Oklahoma on Sept. 24 blocked the state from using religion as an automatic bar to a charter application, allowing a proposed Jewish virtual school to keep seeking approval after officials rejected it because of its faith.

U.S. District Judge David Russell granted a preliminary injunction to the National Ben Gamla Jewish Charter School Foundation, after the Oklahoma Statewide Charter School Board, citing state law and the Oklahoma Supreme Court’s 2024 Drummond decision, denied the application because the school would be religious. The order does not approve the school or allow it to open. It only stops the board from treating religious character as a disqualifier while the case proceeds.

The ruling in Oklahoma Statewide Charter School Board v. Drummond involved a different school. In June 2024, the Oklahoma Supreme Court ordered the board to cancel its contract with St. Isidore of Seville Catholic Virtual School. The state court held that the Catholic school was effectively a governmental entity and that the contract violated the Oklahoma Constitution’s ban on “using public money for the benefit or support of any religious institution.”

Because it treated the charter school as a state actor, the court also said denying it charter status did not violate the U.S. Constitution’s free exercise clause.

The U.S. Supreme Court deadlocked 4–4 in the Drummond case last year. Justice Amy Coney Barrett recused herself. The tie left the state decision in place but did not establish a national precedent. How the individual justices voted was not disclosed.

The new ruling is the first federal court order to treat Oklahoma’s nonsectarian charter rule as a free exercise violation after that deadlock.

Ben Gamla is a separate applicant. It never received a contract. The foundation applied for a virtual Jewish charter; the board rejected the application. Board attorneys from First Liberty Institute said the board wanted to follow the First Amendment but believed Oklahoma law and the Drummond state court ruling forbade approval. The board did not oppose the injunction and argued in favor of it. Two groups of intervening taxpayers and charter school families did oppose it.

Russell held that once Oklahoma opens a generally available charter program, it cannot exclude applicants because they are religious.

The nonsectarian requirement in the Oklahoma Charter Schools Act “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character and in doing so, violates the Free Exercise Clause of the First Amendment,” the judge said.

Russell held that Carson v. Makin (2022) governs the dispute.

In both that case and this one, “the state created a generally available benefit: the opportunity to apply for and contract with a sponsor to establish a charter school. But the state categorically excludes religious institutions from participating. As Carson plainly stated, ‘[t]hat is discrimination against religion.’”

The injunction is temporary. Ben Gamla still needs the board to approve a charter on the remaining statutory criteria. Intervenors have said they will keep fighting the claim that a public charter may be religious.

Counsel at First Liberty, Holly Randall, hailed the new court ruling.

“We’re grateful the court answered this important question of the law and agreed that enforcing a religious prohibition is a violation of the United States Constitution,” Randall said in a statement.

Daniel Chen, an attorney for Ben Gamla at the Becket Fund for Religious Liberty, said the ruling makes sure his client “now gets what it should have had from the start: a fair shot to serve Oklahoma families.”

“The Constitution doesn’t permit the state to welcome every kind of charter school except a religious one,” he said.

Attorneys for the intervenors at groups including Americans United for Separation of Church and State and the American Civil Liberties Union expressed disappointment over the ruling, saying it marked “a dangerous sea change for our democracy.”

“We will continue ⁠to fight for all Oklahomans, who deserve public schools that are secular and open to all students,” they said.

Reuters contributed to this report.