By Nate Raymond
Sept 24 (Reuters) – A federal judge in Oklahoma cleared the way on Thursday for a Jewish organization to establish the nation’s first taxpayer-funded religious charter school in a case over religious rights in American education that could eventually reach the US Supreme Court.
US District Judge David Russell in Oklahoma City issued a preliminary injunction blocking the state from excluding the National Ben Gamla Jewish Charter School Foundation from Oklahoma’s charter program. State law requires charter schools to be nonsectarian.
Charter schools are considered public schools under Oklahoma law and draw taxpayer funds from the state government.
The judge said the restriction expressly discriminates against otherwise eligible schools solely because of their religious character in violation of the US Constitution’s First Amendment protection for the right to exercise one’s religion freely without government interference, known as the “free exercise clause.”
“A long line of Supreme Court precedent supports plaintiffs’ position,” wrote Russell, an appointee of Republican former President Ronald Reagan.
Another provision of the First Amendment, called the “establishment clause,” restricts government officials from establishing or endorsing any particular religion or promoting religion over nonreligion.
Set up as alternatives to traditional public schools, charter schools typically operate under private management and often feature small class sizes, innovative teaching styles or a particular academic focus.
The judge blocked the Republican-led state from enforcing its state law. Several Oklahoma taxpayers and families intervened to defend the law after the Oklahoma Statewide Charter School Board, which had denied Ben Gamla’s application, opted not to oppose a ruling against the nonsectarian mandate.
Daniel Chen, a lawyer for Ben Gamla at the religious rights legal group Becket, said in a statement that the ruling will ensure it “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,” Chen said.
Lawyers for the interveners at groups including Americans United for Separation of Church and State and the American Civil Liberties Union in a joint statement said the ruling 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.
The ruling came a year after the Supreme Court split 4-4 on whether to overturn an Oklahoma Supreme Court ruling that had prevented two Catholic dioceses from establishing a taxpayer-funded charter school in the state. The court was unable to resolve the issue after conservative Justice Amy Coney Barrett recused herself from the case.
In ruling in favor of Ben Gamla, Russell cited a 2022 ruling that the Supreme Court delivered that further reduced the separation of church and state by siding with two Christian families who challenged a Maine tuition assistance program that excluded private religious schools.
Russell said that, similar to Maine, Oklahoma had by law “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,” the judge wrote.
(Reporting by Nate Raymond in Boston; Editing by Will Dunham)
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