Christian Nationalists and their allies are seeking a mulligan after the U.S. Supreme Court last year blocked their plans to create the nation’s first religious public school.
May 22 marks the one-year anniversary of the U.S. Supreme Court deadlocking in the case of St. Isidore of Seville Catholic Virtual School — a proposed public charter school in Oklahoma that would have interwoven Catholic religious teachings throughout the curriculum and planned to discriminate against students, families, and staff who didn’t adhere to the school’s religious beliefs.
Since state and federal laws are clear that charter schools are public schools and public schools can’t be religious, Americans United and allies represented several Oklahoma parents, faith leaders, and public school advocates to challenge St. Isidore in court. Republican Oklahoma Attorney General Gentner Drummond also sued to block the school.
Agreeing with many of the arguments that AU and allies had presented in a friend-of-the-court brief, the Oklahoma Supreme Court ruled in Drummond’s case in 2024 that religious charter schools would violate the separation of church and state.
The school appealed the case to the U.S. Supreme Court, where Justice Amy Coney Barrett recused herself and didn’t participate in the case, leaving the remaining eight justices to split 4-4. The deadlock meant the nation’s high court set no nationwide precedent but left in place the Oklahoma Supreme Court decision barring public charter schools from promoting religion to students or coercing students to take part in religious activity.
conference last year in Tulsa, Okla. (Tom Gilbert)
Almost immediately, conservative legal groups began scrambling for another shot at convincing the U.S. Supreme Court to erode church-state separation by green-lighting religious public schools. As AU Constitutional Litigation Fellow Luke Anderson noted on AU’s “Wall of Separation” blog, “In a handful of new attempts to create a test case on this issue, we’ve seen plenty of the usual grievance-airing over supposed anti-religious bias. But these would-be schools and their backers haven’t spent much time focusing on the whole running-a-school thing.”
Riverstone Academy in Colorado
Take, for example, Riverstone Academy, a “contract school” in Pueblo, Colo., that has been described as Colorado’s “first public Christian school.” While not actually a charter school, Riverstone was authorized under a Colorado law that allows local public-education agencies to contract for educational services. And the entities that provide educational services under this law are bound by the same requirements as public schools, including that they must be secular.
Riverstone was apparently created to spark a lawsuit that would end up at the Supreme Court. The education news site Chalkbeat reported Riverstone had teamed up with the Christian Nationalist legal group Alliance Defending Freedom (which also had supported St. Isidore in Oklahoma) to test “the legalities around the issue of whether a public school may provide religious education.” Sure enough, Riverstone filed a lawsuit in federal court in February, claiming it would be religious discrimination if the state denied it funding.
Somewhat ironically, before Riverstone could even file its lawsuit, it got shut down by Pueblo County for various zoning and health-and-safety violations. The school seemingly prioritized its rush to the Supreme Court over the basic safety of its students. The school is apparently operating from a temporary location, but its long-term viability seems uncertain. No matter, it’s still pursuing what is clearly its raison d’être: attacking church-state separation in court.
Ben Gamla Jewish Charter School in Oklahoma
Ben Gamla Jewish Charter School is the latest effort to create a religious public charter school in Oklahoma. Like St. Isidore, Ben Gamla plans to infuse religious teachings “into every dimension of its life,” and it intends to follow discriminatory policies and practices in its interactions with students and employees.
These are big problems, but they’re not Ben Gamla’s only faults. Oklahoma Jewish groups have raised alarms over Ben Gamla, not only because it would violate the separation of church and state, but also because the would-be school’s Florida-based backers “bypass[ed] community consultation” with Oklahoma Jews. In other words, nobody in Oklahoma asked for a Jewish public school.
In the lead-up to the St. Isidore case, Ben Gamla founder Peter Deutsch of Florida told the news organization Jewish Telegraphic Agency that he had concluded Oklahoma’s small Jewish population made the state a poor location for a Jewish charter school. And as Jewish leaders in the state have pointed out, there’s no lack of opportunities for Jewish education in Oklahoma.
“We are deeply concerned that an external Jewish organization would pursue such an initiative in Oklahoma without first engaging in meaningful consultation with the established Oklahoma Jewish community,” wrote the leaders of five Oklahoma Jewish organizations earlier this year. “Had such consultation occurred, [Ben Gamla] would have been made aware that Oklahoma is already home to many Jewish educational opportunities.”
“So what’s Ben Gamla really after?” asked AU’s Anderson. “Again, it seems the main point is to set up a test case, facts on the ground be damned. And Ben Gamla doesn’t even appear interested in hiding the fact that this is nothing more than a scrambled request for a mulligan on St. Isidore.” One of Ben Gamla’s board members is Brett Farley, executive director for the Catholic Conference of Oklahoma who was also a board member of St. Isidore. And several portions of Ben Gamla’s initial charter application appear to have been hastily copied from St. Isidore’s application and other sources.
Anderson also noted that Ben Gamla apparently failed to complete several necessary application steps, such as completing pre-application training and submitting proposed governing bylaws along with its application. And it submitted multiple conflicting versions of enrollment projections and corresponding budgets.
“While Ben Gamla may not be particularly serious about educating children, it’s plenty serious about going to court,” Anderson said. Shortly after the Oklahoma Statewide Charter School Board denied Ben Gamla’s deficient charter application, Ben Gamla promised to file a lawsuit challenging the denial in federal court. It followed through on that promise in March.
Days later, AU and allies filed a motion to intervene in the lawsuit on behalf of a predominantly Jewish group of seven Oklahoma taxpayers — including families with children attending public schools, teachers, and clergy. These Oklahomans object to their tax dollars funding a public charter school that will indoctrinate students into a particular religion. They also object to public funds being diverted from their nonreligious and inclusive public schools — which already face serious resource limitations — to a religious school that plans to discriminate based on religion.
“Public education is a foundation of our pluralistic society, and it is worth protecting,” said proposed intervenor Rabbi Dan Kaiman, principal rabbi of Congregation B’nai Emunah in Tulsa and the parent of two public school students. “I care deeply about Jewish education, but our community does not need or want the government’s help to pass our values on to our children. The separation of church and state is what protects every faith community, including my own.”
“My family is Jewish. We know firsthand that people of all faiths are best served when public schools don’t impose one idea of religion over others,” said Kara Joy McKee, another proposed intervenor and parent of a public school student. “A religious public charter school would undermine religious freedom and drain tax dollars from schools that are welcoming to students of all faiths, families, and backgrounds.”
At Church & State’s press time, the court had not yet ruled on AU’s intervention motion.
Wilberforce Academy in Tennessee
For all their deficiencies, Riverstone and Ben Gamla at least managed to take some steps toward opening a school. The same can’t be said for would-be religious public charter school Wilberforce Academy in Knoxville, Tenn., which filed a lawsuit in November challenging Tennessee’s requirement that charter schools be nonreligious before even submitting a charter application. Wilberforce wants to open a public charter school that would provide an “explicitly biblical and Christian education.”
Americans United and allies also have intervened in that lawsuit on behalf of five Knox County taxpayers, clergy, and public school parents. The intervenors include the Rev. Dr. Richard Coble, who is a pastor at Westminster Presbyterian Church in Knoxville and the parent of two Knox County public school students.
“The Reformed tradition in which I am formed has long supported the separation of church and state, believing that our faith, and all faiths, are best supported when they are free of undue state interference,” Coble said. “This is why I object to the use of tax dollars to support religious education of any kind, including my own religion. Religious education is the job of churches, denominations, and private religious schools.”
Aside from Wilberforce’s attacks on church-state separation, Anderson said it’s also “worth bearing in mind that this case shouldn’t exist in the first place. Wilberforce is asking the court to weigh in on a pure hypothetical, which courts are not supposed to do.”
Anderson explained that the Constitution says that the job of courts is to decide actual “cases” and “controversies” arising from real — not imagined — facts. Courts mustn’t weigh in if those facts don’t exist or if they cease to exist (because, say, your school got shut down for operating in a combustible building in a location zoned for things like marijuana dispensaries, as in the case of Riverstone in Colorado).
“This rule is especially important when it comes to the Constitution’s religion clauses, which exist in large part to minimize religious conflict,” Anderson said. “When those hungry for a test case rush into court with hypothetical problems, they undermine the religion clauses by generating religious conflict where it wouldn’t otherwise exist.
“Make no mistake, lawsuits are an important tool for vindicating rights and resolving constitutional questions,” Anderson added. “But when litigants (and courts) lose sight of the real world, our divides and conflicts will only deepen.”
AU President and CEO Rachel Laser affirmed the organization’s commitment to defending public schools that are secular and open to all. “Religious public schools violate our country’s promise of church-state separation, which is the guarantee of religious freedom,” Laser told Oklahoma City television station News 9.
“I think there is an outright effort to confuse what is a very simple reality,” Laser said of the arguments put forth by supporters of religious public charter schools in Oklahoma. “The Oklahoma Supreme Court has ruled, and it is clear as daylight, that it is a violation of church-state separation for a public school, which is fully and directly funded by taxpayer dollars, to be religious.”