\n<\/p>\n
New efforts to establish religious charter schools are accelerating in several states, as advocates hope to return to the U.S. Supreme Court and finally get an answer about whether such schools pass constitutional muster.<\/p>\n
Last year, the justices deadlocked 4-4 in a case over the proposed St. Isidore of Seville Catholic virtual charter school in Oklahoma, with Justice Amy Coney Barrett recused. That outcome affirmed, without setting a nationwide precedent, a state supreme court decision that religious charter schools are barred in Oklahoma by the First Amendment\u2019s prohibition against government establishment of religion.<\/p>\n
Advocates for religious charter schools have regarded the lack of resolution as an opening to try again.<\/p>\n
\u201cThe [U.S. Supreme] Court has made clear that once you start funding private entities, you cannot exclude participants because of their religion,\u201d said Eric Baxter, vice president and senior counsel of the Becket Fund for Religious Liberty, a non-partisan legal group that is representing a proposed Jewish charter school that has applied to operate in Oklahoma.<\/p>\n
\u201cWe would ultimately go to the Supreme Court\u201d if the application for the Jewish charter school is denied and lower courts rule against the effort, he said.<\/p>\n
Alex J. Luchenitser, associate vice president of Americans United for Separation of Church and State, which has been working with the American Civil Liberties Union and other groups in the fight against such schools, said, \u201cWe think that the law here is on our side and that the Constitution clearly prohibits religious public charter schools.\u201d<\/p>\n
\u201cThe other side is hoping this gets back to the Supreme Court,\u201d Luchenitser added. \u201cAnd they\u2019re hoping Justice Barrett does not have to recuse herself again, and that they get a 5-4 vote in their favor. It\u2019s all very speculative.\u201d<\/p>\n
Perhaps. But there are several new efforts backed by religious charter proponents who are willing to speculate. The reward, if they are successful, would be approval for their schools and a major shift in the educational landscape that could permit religious charters in any state with charter schools, which are independently operated public schools.<\/p>\n
\u201cJust the chaos or the threat to the way charter schools operate, we think exists again through these cases, so we\u2019re paying close attention,\u201d said Eric Paisner, the chief legal officer of the National Alliance for Public Charter Schools, which opposes religious charters.<\/p>\n
Two of the new efforts involve proposed religious charter schools\u2014the Ben Gamla Jewish Charter School, a virtual school in Oklahoma, and the Wilburforce Academy of Knoxville, Tenn., which seeks to open a Christian brick-and-mortar school.<\/p>\n
A third revolves around a \u201ccontract\u201d public school in Colorado, which opened last fall and touts a \u201cChristian foundation\u201d to its learning program.<\/p>\n
The Ben Gamla application is being advanced by Peter Deutsch, a former Democratic congressman from Florida who opened the first Ben Gamla public charter school in Hollywood, Fla., in 2007 as a Hebrew language and Jewish culture-themed school. The Ben Gamla network now has six charter schools in South Florida that do not teach the Jewish faith but allow students to be released during the school day for religious instruction.<\/p>\n
\u201cThe schools have consistently performed and been rated at the top 5 or 10% of the public schools, not just charter schools, in the state of Florida,\u201d Deutsch said during a Jan. 12 appearance before the Oklahoma Statewide Charter School Board, which is considering his application.<\/p>\n
\u201cThe opportunity is probably the best in Oklahoma of any state\u201d in the country, Deutsch said.<\/p>\n
The school\u2019s charter application says it seeks to provide an academic program \u201cinfused with a Jewish understanding of the human person and grounded in the enduring Jewish values of truth (emet), beauty (yofi), and goodness (tov), as expressed in Jewish thought and tradition.\u201d<\/p>\n
It projects opening in the fall of 2026 with 500 students and state funding of $2.6 million, growing to 1,500 students and funding of $8.3 million by 2030.<\/p>\n
Oklahoma is home to about 9,000 Jews, by most estimates, or less than 1% of the state population. Some Jewish leaders have questioned the need for such a religious virtual school.<\/p>\n
Baxter, the Becket Fund lawyer representing the Ben Gamla effort, said Deutsch has \u201cspent significant time in Oklahoma, meeting with Jewish leaders and Jewish families. There are a lot of people who would like this opportunity.\u201d<\/p>\n
On Feb. 3, Americans United, the ACLU, the Education Law Center, and the Freedom From Religion Foundation sent a letter urging the Oklahoma statewide charter board to reject the Ben Gamla application.<\/p>\n
\u201cAs the Oklahoma Supreme Court recently made clear, Oklahoma charter schools are prohibited from promoting religion to students or coercing students to take part in religious activity, including by incorporating religious teachings into curriculum and co-curricular activities,\u201d the letter says.<\/p>\n
The groups also point out that the Ben Gamla school, like St. Isidore before it, demands religious-based exemptions from state anti-discrimination laws and requirements that would allow it to make admissions and employment decisions based on religion, sexual orientation, and gender identity.<\/p>\n
\u201cBen Gamla\u2019s application makes very clear that it plans to comply with antidiscrimination rules applicable to Oklahoma charter schools only to the extent those rules do not conflict with its religious beliefs,\u201d the letter states.<\/p>\n
The statewide charter board has put the Ben Gamla application on its agenda for an initial vote next week. The board\u2019s predecessor state agency had granted St. Isidore\u2019s application, leading to a clash with Oklahoma Attorney General Gentner Drummond, a Republican who agreed with opponents that the federal Constitution did not permit religious charter schools. That led to the state high court opinion against St. Isidore and the U.S. Supreme Court case that ended in the 4-4 deadlock.<\/p>\n
The statewide board may be sympathetic to Ben Gamla\u2019s application, but board Chairperson Brian Shellem said at the meeting last month that \u201cwe will more than likely have to deny their application\u201d because the state high court ruling is binding on the board.<\/p>\n
Whatever the vote, a lawsuit from either proponents or opponents appears inevitable.<\/p>\n
In Tennessee, there is already a lawsuit over the proposed Wilburforce Academy. The organizers of the Christian school in November sued the 60,000-student Knox County school district in its role as a charter school authorizer, even though the school had not yet filed a charter application.<\/p>\n
Filing a charter application would be \u201cfutile,\u201d the school said in its suit, because \u201cdespite Tennessee\u2019s general commitment to charter-school autonomy, state law makes clear that religious groups cannot participate in the charter-school program.\u201d<\/p>\n
Tennessee Attorney General Jonathan Skrmetti, a Republican, issued an advisory opinion in November that the state\u2019s ban on religious charters \u201clikely\u201d violates the First Amendment\u2019s free exercise of religion clause, based on the U.S. Supreme Court\u2019s recent trend of cases giving religious schools greater rights to participate in state choice and scholarship programs. <\/p>\n
But the attorney general\u2019s opinion was \u201ctentative and not binding on Knox County,\u201d Wilburforce Academy said in a court filing.<\/p>\n
On Feb. 5, the Knox County board of education considered a motion to ask Tennessee\u2019s education commissioner to consider a waiver that would allow Wilburforce to open as a Christian school. The idea appears to have been designed to pass the question to the state level, where officials may or may not have the authority to issue such a waiver.<\/p>\n
\u201cI think we\u2019re all a little confused as to why Knox County is being sued at all,\u201d Knox County school board chair Kristi Kristy said at the meeting. <\/p>\n
Some board members noted that Wilburforce did not file a charter application by the Feb. 1 deadline to win approval for next school year.<\/p>\n
\u201cThey haven\u2019t even done the first step,\u201d said board member Anne Templeton. \u201cThey started with a lawsuit. … For that reason, I cannot support pandering to this kind of workaround.\u201d<\/p>\n
The motion to ask the Tennessee commissioner to consider a waiver failed.<\/p>\n
Wilburforce has asked a federal district judge in Knoxville to rule quickly on its motion for summary judgment that would set aside state laws barring religious charter schools.<\/p>\n
\u201cAbsent an injunction, defendants will continue to violate Wilberforce\u2019s First Amendment right to a fair opportunity to apply to establish a charter school,\u201d the school says in the filing.<\/p>\n
The Knox County board told the court it wasn\u2019t in a position to argue the constitutional issues, but Americans United and its allies recently intervened in the case on behalf of several Knox County residents who oppose the religious charter.<\/p>\n
In Colorado, the Riverstone Academy in Pueblo opened as a K-5 elementary school with some 30 students last year under a contract with the Education reEnvisioned Board of Cooperative Education Services. (Many states have such regional BOCES agencies that serve multiple school districts for such specialized offerings as career and technical education.)<\/p>\n
The school facility temporarily closed on Feb. 3 amid health and safety concerns from county officials, but the debate over its religious nature is continuing. It had opened in the fall after getting co-sponsorship from the Colorado Springs and Pueblo school districts.<\/p>\n
In October, the Colorado Department of Education wrote to Education reEnvisioned to question the arrangement, saying that Riverstone Academy appears to be \u201csectarian\u201d and thus ineligible for public funding under state law.<\/p>\n
\u201cPublic schools are generally required to be nonsectarian in nature,\u201d said the state letter. \u201cThus, any school that [Education reEnvisioned] operates must be nonsectarian in nature.\u201d<\/p>\n
Kenneth Witt, the executive director of the BOCES, responded that the school meets all other requirements and that the U.S. Constitution \u201cprohibits discrimination against Riverstone solely on account of its religious affiliation as such exclusion from a generally available governmental benefit would be unconstitutional.\u201d<\/p>\n
Luchenitser of Americans United said his group is researching the Colorado situation, which appears to be aimed at establishing another test case that could reach the U.S. Supreme Court.<\/p>\n
\u201cThat\u2019s one we\u2019re watching, and everyone is waiting to see what the state is going to do,\u201d he said.<\/p>\n
If any of these or other religious public school experiments reach the high court, all eyes will be on Justice Barrett.<\/p>\n
She recused herself from the St. Isidore case, but based on Barrett\u2019s generally right-leaning legal outlook, conservatives seem confident that if a religious charter case reaches the high court and is heard by a full bench, they will prevail.<\/p>\n
That was underscored in an exchange last September between Barrett herself and the conservative radio host Hugh Hewitt. He was interviewing her before an audience at the Richard Nixon Presidential Library in Yorba Linda, Calif., about her book, Listening to the Law.<\/p>\n
\u201cI am glad that the court\u2014you don\u2019t have to comment\u2014punted on the Oklahoma case, because you were recused,\u201d Hewitt told her, adding that he looked forward to a similar case returning to the court \u201cand I hope that the assignment memo designates you,\u201d meaning that Barrett would be assigned to write the majority opinion to uphold religious charters.<\/p>\n
Hewitt quickly moved on as Barrett, with an uncomfortable look on her face, said nothing.<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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