A federal judge ruled that Oklahoma officials cannot exclude a Jewish school from the state’s charter school program, more than a year after the Supreme Court punted on the constitutionality of taxpayer-funded religious charter schools.
U.S. District Judge David Russell, an appointee of former President Ronald Reagan, found that Oklahoma officials’ denial of the National Ben Gamla Jewish Charter School Foundation into the charter program violates the First Amendment because the state cannot “single out religious schools for exclusion solely because of their religious character.” Oklahoma officials had argued that allowing the school into the program would violate the First Amendment’s establishment clause, which bars the government from establishing a state religion, an argument the judge rejected.
“Because the nonsectarian provision in the Oklahoma Charter Schools Act expressly discriminates against otherwise eligible recipients solely because of their religious character, it violates the Free Exercise Clause of the First Amendment,” Russell said in the ruling. “Further, neutrally administering the charter school program, to neither favor nor disfavor religion, does not offend the Establishment Clause.”
The Thursday ruling comes more than a year after the Supreme Court deadlocked 4-4 in a similar case brought by a Catholic virtual school that appealed an Oklahoma Supreme Court ruling blocking approval of the school’s charter due to its religious affiliation. The high court’s deadlock meant that the lower court’s ruling remained in place, so there was no precedent set by the Supreme Court in the matter.
Peter Deutsch, founder of the National Ben Gamla Jewish Charter School Foundation, praised Russell’s ruling as a “victory for educational freedom, religious equality, and families in Oklahoma.”
“The state cannot single out religious schools for exclusion while welcoming everyone else into the charter school program,” Deutsch said in a statement shortly after the ruling. “We’re eager to open wide the doors of educational opportunity in Oklahoma.”
The preliminary injunction granted by Russell allows the school to operate in the state’s charter school program while litigation continues. Oklahoma officials and activist groups that had intervened in the lawsuit to bar the Jewish school from access to the program can appeal the ruling to the U.S. Court of Appeals for the 10th Circuit within the next month.
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If the lawsuit continues to make its way through federal courts, it could be appealed up to the Supreme Court, where the justices had to punt on the issue last year after the high court was deadlocked in a case involving a Catholic school attempting to join the charter school program.
The 4-4 deadlock occurred after Justice Amy Coney Barrett recused herself from the case. While Barrett did not cite a specific reason for recusal, legal analysts speculated the decision stemmed from her personal ties to Nicole Garnett, a Notre Dame law professor and early legal adviser to the Catholic school whose case made its way to the Supreme Court.