The Oklahoma Statewide Charter School Board didn’t say why it denied the application, but a lack of interest from families in the school, rather than its religious mission, might have played a role.

In emails to several Oklahoma Jewish leaders, Peter Deutsch, founder of the nonprofit that would run Ben Gamla Jewish Charter School, said his “aspirational enrollment goal” for the first year was 10 students in grade nine through 12 — only a quarter of the 40 students he projected in November and a tiny fraction of the roughly 400 K-12 students projected in the initial application. 

Ben Gamla “lacks community support” and “cannot be financially or operationally viable,” organizations opposing the school said in a to the board. They include Americans United for the Separation of Church and State and the American Civil Liberties Union.

To most charter school advocates, the Oklahoma Statewide Charter School Board made the right call in rejecting an application for a school that doesn’t appear to be responding to a demand. “Every charter application must hold up academically, financially and operationally,” Starlee Coleman, president and CEO of the National Alliance of Public Charter Schools, said in a statement. 

One of Deutsch’s emails went to Rabbi Dan Kaiman of Tulsa, who is among the Oklahomans to keep the school from opening. He was also one of several Jewish leaders who last December said the school “would undermine both religious freedom and public education.” The board’s move, however, may further escalate the legal battle over the school. 

“The board decision openly defies a federal court ruling that religious schools cannot be excluded from public programs,” said Daniel Chen, counsel at Becket, a nonprofit law firm focused on religious freedom and lead attorney for the school. “Ben Gamla is asking only for equal treatment and — if necessary — will seek a court order to enforce it.”

‘Truckload of litigation’

The Ben Gamla application is the second attempt to establish the nation’s first religious charter school in Oklahoma. 

In 2023, a now-defunct virtual charter school board narrowly approved an application for St. Isidore of Seville Catholic Virtual School. That action set off a two-year legal battle that ended last year when the U.S  Supreme Court deadlocked over whether such schools are legal under the Constitution. Justice Amy Coney Barrett recused herself from the case, which led to the 4-4 tie and the likelihood that a similar case would work its way back to the high court. 

This is also the second time the board has denied Ben Gamla’s application. In March, when the board voted against it, Chairman Brian Shellem said the members were bound by the Oklahoma Supreme Court’s 2024 ruling that public funding for a religious school would violate state law. That decision sparked the school’s lawsuit and the move by Oklahoma parents, educators and religious leaders to intervene in the case.

On Monday, Shellem was among the four members who voted to approve the application. Under the bylaws, any motion requires five affirmative votes to pass.

“I think we made a mistake as a board,” he said during the meeting. “We are opening ourselves up to a truckload of litigation.”

Deutsch, a Democrat who represented Florida in Congress from 1993 to 2005, founded a successful network of secular charter schools in his home state that teach Hebrew language and culture. But as an advocate for Jewish education, he saw an opportunity when Oklahoma’s virtual charter school board approved St. Isidore’s application.

Before the Supreme Court heard that case, he told ĂŰĚŇÓ°ĘÓ that his goal was to open 100 Jewish charter schools across the country. But he has struggled from the beginning to build support. When he presented his plan to the charter board in January, he said he had only talked with in Oklahoma about his idea.

In his letter to Kaiman, he asked the rabbi to consider applying to become the school’s principal and said one of the school leader’s responsibilities would be to recruit high school students to convince parents that the school would offer “an outstanding educational opportunity.”

‘A hunger for educational options’

One legal expert described the lack of students lining up to enroll in Ben Gamla as a “chicken and egg problem.”

“Is the lack of demand preventing supply or vice versa?” asked Ilya Shapiro, a senior fellow and director of constitutional studies at the conservative Manhattan Institute. “I think there’s a hunger for educational options.”

The debate swirling around St. Isidore, Ben Gamla and Wilberforce Academy, a proposed Christian charter school in Tennessee, centers on whether charter schools are government entities, like traditional public schools, or whether they are private because nonprofit organizations run them. In the Catholic charter case, the state Supreme Court held that St. Isidore violated the First Amendment’s prohibition on government establishing a religion as well as the state constitution.

But in the Ben Gamla case, Judge David Russell, a Reagan appointee who sits on the U.S. District Court for the Western District of Oklahoma, that “an otherwise private actor is not transformed into a government entity merely because it has been awarded a government contract.”

John Meiser, part of the legal team that took the St. Isidore case to the Supreme Court, said the fact that Ben Gamla would practice Judaism shouldn’t disqualify it from opening a charter school.

“These could be really valuable educational resources in a state where that educational community is presently not very visible,” said Meiser, director of the Lindsay and Matt Moroun Religious Liberty Clinic at Notre Dame Law School. But he added, “The state would presumably want to see some critical mass of support in the community.”