In National Ben Gamla Jewish Charter School Foundation, Inc. v. Shellem, the Ben Gamla Jewish Charter School Foundation applied to open a public charter school in Oklahoma and receive state funding. The Oklahoma Statewide Charter School Board initially rejected the application, relying on the Oklahoma Supreme Court’s ruling in St. Isidore of Seville Catholic Virtual School v. Drummond, which held that faith-based charter schools violate the state constitution and state law. However, because the board explicitly cited religious grounds for its initial denial, it opened itself up to a First Amendment "Free Exercise" lawsuit.
The Becket Fund for Religious Liberty represented the Ben Gamla Foundation in federal district court, arguing that excluding religious organizations from publicly available educational benefits violates the U.S. Constitution. Becket cited recent U.S. Supreme Court precedents—including Trinity Lutheran v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin—which established that states cannot deny public funds to institutions solely based on their religious status. Federal District Judge David L. Russell issued a preliminary injunction in favor of the foundation, ruling that Oklahoma's nonsectarian restriction unconstitutionally discriminates against eligible recipients based on religious character.
Note that in the three above cases, the Supreme Court decided :
Trinity Lutheran Church v. Comer (2017) The Court held that denying a public benefit to an entity based purely on its religious status violates the Free Exercise Clause.
Espinoza v. Montana Department of Revenue (2020) The Court ruled that once a state decides to provide aid for private education, it cannot discriminate against religious schools or parents solely because of the school’s religious identity.
Carson v. Makin (2022) The Court held that excluding religious schools from a tuition assistance program violates the Free Exercise Clause.
Despite the federal court order, the Oklahoma Statewide Charter School Board subsequently voted 4–3 against approving the charter application. In later votes, opposing board members cited non-religious justifications, such as a lack of demonstrated local parental support. Board Chairperson Brian Shellem acknowledged the legal tightrope, noting that the federal injunction prevents discrimination against the school based on its religious identity. Nevertheless, because the initial denial explicitly hinged on religious grounds, the ongoing dispute is positioned to move through the appellate courts and potentially reach the U.S. Supreme Court.
Religion and Constitutional Law
The Ben Gamla Foundation argues that its proposed curriculum maintains constitutional neutrality. While the school incorporates Hebrew language instruction—a subject deeply intertwined with Jewish culture and religious traditions—the foundation contends this is no different than a Spanish immersion school teaching students about cultural traditions like salsa dancing or historical events like the Spanish Inquisition. From the foundation’s perspective, denying public charter status because of cultural-religious heritage constitutes unlawful discrimination against an organization offering a secular curriculum.
However, this case highlights a deep tension between two foundational principles of First Amendment jurisprudence: the Free Exercise Clause and the Establishment Clause. Under recent U.S. Supreme Court jurisprudence, the Free Exercise Clause prohibits state governments from excluding religious individuals or organizations from public benefit programs simply because they are religious. Conversely, the Establishment Clause mandates that government bodies remain neutral and refrain from funding or endorsing religious instruction and practice.
My Response
I agree with the state’s position that public charter schools should not receive public tax dollars if they incorporate religious instruction or identity. Public charter schools operate as publicly funded government actors, and they have a constitutional obligation to remain strictly secular. If Ben Gamla were seeking to operate as a private school, it would be free to integrate religious tradition however it sees fit. But once an institution seeks public funds as a charter school, it must abide by public constitutional standards.
Allowing state funding for religious charter schools introduces two significant constitutional risks:
Preserving Government Neutrality: A core foundation of American religious liberty is the separation of church and state. Isolating government funding from religious institutions prevents the state from favoring majority religions or getting itself in doctrinal matters. When the state funds religious education, public tax dollars inevitably support religious indoctrination.
The Slippery Slope of Selective Funding: If the state begins funding charter schools affiliated with one religious tradition, constitutional fairness dictates it must fund all religious organizations. While supporters may advocate for a Jewish or Christian charter school, public sentiment often shifts when considering a charter school focused on Islamic Shariah law or Scientology. The Establishment Clause exists precisely to avoid forcing taxpayers to fund religious practices they may disagree with, and to prevent the government from picking winners and losers among faith traditions.
Ultimately, cases like Ben Gamla demonstrate how the line between public education and private religious exercise is eroding. While recent precedents like Carson v. Makin have expanded Free Exercise protections for private religious choices, extending those principles to state-created charter schools crosses a critical line. Public charter schools are public schools; maintaining their strictly secular character is essential to protecting both religious freedom and public education.
Bibliography
Brumley, Jeff. "Oklahoma Board Rejects Jewish Charter School Application." Baptist News Global, 19 Oct. 2026, baptistnews.com/article/oklahoma-board-rejects-jewish-charter-school-application/.
Eger, Andrea. "AG: Third Vote on Jewish Charter School Would Be Illegal." Oklahoma Watch, 22 Oct. 2026, oklahomawatch.org/2026/10/22/ag-third-vote-on-jewish-charter-school-would-be-illegal/.
Elia-Shalev, Asaf. "Jewish School Becomes Battleground in US 'Church-State Separation' Legal Challenge." The Times of Israel, 22 Nov. 2025, www.timesofisrael.com/jewish-school-becomes-battleground-in-church-state-separation-us-supreme-court-challenge/.
Helfand, Michael A. "The Fight for a Jewish Charter School Isn't a Christian Nationalist Plot." Jewish Journal, 29 Apr. 2026, jewishjournal.com/commentary/opinion/388411/the-fight-for-a-jewish-charter-school-isnt-a-christian-nationalist-plot/.
Martinez-Keel, Nuria. "Oklahoma State Board Again Rejects Jewish Charter School in 'Shocking' Vote." Oklahoma Voice, 12 Oct. 2026, oklahomavoice.com/2026/10/12/oklahoma-state-board-again-rejects-jewish-charter-school-in-shocking-vote/.
National Ben Gamla Jewish Charter School Foundation, Inc. v. Shellem, No. 5:26-cv-00582-R, doc. 121, W.D. Okla., 24 Sept. 2026. Americans United for Separation of Church and State, www.au.org/wp-content/uploads/securepdfs/2026/09/Ben-Gamla-v.-Shellem-District-Court-Order-9.24.26.pdf.
National Ben Gamla Jewish Charter School Foundation, Inc. v. Shellem. No. 5:26-cv-00582-R, 2026 WL 440274 (W.D. Okla. Sept. 24, 2026). FindLaw, caselaw.findlaw.com/court/us-dis-crt-w-d-okl/440274.html.
"National Ben Gamla Jewish Charter School Foundation, Inc. v. Shellem." The Becket Fund for Religious Liberty, becketfund.org/case/national-ben-gamla-jewish-charter-school-foundation-v-shellem/.
Wallis, Beth. "Oklahoma Jewish Charter School Secures Win in Federal Court." KOSU, 24 Sept. 2026, www.kosu.org/ben-gamla-federal-court-ruling.
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