A strategic lawsuit in Oklahoma could block public money from funding religious schools
The lawsuit says the Oklahoma Statewide Charter School Board's sloppy rejection of a Jewish charter school gives religious zealots a legal opening
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Oklahoma is currently caught in the middle of a battle seeking to use taxpayer dollars to fund religious schools, and the attorney general just took a major step to avoid that disastrous outcome.
A little backstory is helpful here. A few years ago, the Oklahoma Statewide Charter School Board gave a stamp of approval to the St. Isidore of Seville Catholic Virtual School. This school very clearly intended to push Catholic doctrine on children. They wanted to use public dollars to do it and the state was giving them a green light.
But Oklahoma’s Attorney General Gentner Drummond sued to prevent it, and the state’s highest court stopped them. That 7-1 decision was a clear defense of church/state separation, with the justices saying that funding the religious school violated both the state and federal constitutions.
An appeal went all the way to the U.S. Supreme Court, but after Justice Amy Coney Barrett recused herself from the case, her colleagues were deadlocked 4-4, which left the earlier ruling in place, ending the threat.
Last year, some of the same right-wing zealots who pushed for a publicly funded Catholic school tried to do it again… this time with a Jewish school. They wanted the same Oklahoma Statewide Charter School Board to approve the Ben Gamla Jewish Charter School in the hopes that if this inevitable situation ever reached the Supreme Court, Barrett wouldn’t have to recuse herself and the conservatives might finally rule in their favor.
That’s why conservatives didn’t sweat last month when the charter school board voted to reject the school’s application. It was a unanimous vote, with members saying their hands were tied because of the legal precedent. More specifically, the board cited 10 reasons the application was flawed, with the blatant sectarianism being just one of those reasons.
When a revised application was submitted last week, the same board said most of their concerns had been alleviated… but they still had to reject it due to the school’s “religious tenets.”
We knew—and they knew—how this would play out: The board members of the Jewish school would file a lawsuit citing religious discrimination by the state, judge after judge would say that’s not the issue here, and this would eventually be appealed to a sufficiently right-wing court.
But here’s the twist.
Last week, Attorney General Drummond filed a lawsuit against… the Oklahoma Statewide Charter School Board.
Not because he disagreed with them rejecting the Jewish school but because, he argued, they didn’t thoroughly explain that there were still existing problems with the school’s application. By simply citing the school’s faith, they were making it much easier for a right-wing judge to claim there was religious discrimination at play.
In other words, the recent rejection letter was designed to make it easier for the charter school board to lose in court.
Drummond’s lawsuit calls on the school board to “perform a clear legal duty that they failed to discharge: identifying and incorporating into the record all valid, independent, non-constitutional grounds for rejection of the Ben Gamla Jewish Charter School Foundation, Inc.’s… revised application for initial authorization.”
He adds that he’s not taking a position on whether taxpayer dollars should fund a religious school, only that the charter school board didn’t do their job.
"This Board is playing politics with the taxpayers' money," said Drummond. "The revised Ben Gamla application had multiple serious flaws, which this Board itself identified just weeks earlier. But instead of doing its job and listing every valid reason for rejection, the Board deliberately suppressed those findings to manufacture a cleaner path to federal court. I will not allow this Board to rig the record at taxpayers' expense."
But didn’t the board say that their non-religious concerns had all been alleviated?
Not according to Drummond.
Consider this: The original proposal for the school said it would serve 40 students in grades 9-12. The formal application, submitted two months later, said it would serve 335 students from grades K-12 (while the very next page of the application said it was actually 400 students).
How did they project a ten-fold increase in attendance—and an expansion of nine grade levels—within a matter of weeks? Especially considering that the school’s founder admitted to the board that he had only spoken to about “15-20 people in Oklahoma’s Jewish community, with both the Oklahoma City and Tulsa Jewish communities on record opposing the school”?
Even though the board said this was a matter of concern in February—one of the ten reasons they were rejecting the application—that’s not what they said in March when considering the revision. One board member even said those inflated enrollment projections were “not really a reason to deny an application.”
Here was another concern: Charter schools in Oklahoma are supposed to have a board member who is a “parent, grandparent, or guardian of [a] currently or previously enrolled student.” Ben Gamla did not have a board member who met that requirement in its first application—another one of the 10 reasons to reject them—but their revised application said that person would be Brett Anthony Farley, the Executive Director of the Catholic Conference of Oklahoma.
Drummond says in his lawsuit that there’s no evidence Farley has a kid or grandkid expected to enroll in this school. (Farley told the Oklahoma Voice after the meeting that he has an 11-year-old daughter who “already participates in some online education” but that, if Ben Gamla were to open, the family “would definitely, definitely put that on the deck” as an option. Interpret that however you will.)
A few other unresolved concerns were also noted, but the bottom line, Drummond says, is that the charter school board didn’t include all those other legitimate concerns in their reasoning for rejecting the Ben Gamla school (again).
Because of that, the charter school board has “create[d] a record that appears to leave open the question [of] whether the application was otherwise approvable.”
Drummond’s objective here is to get the charter school board to amend their rejection letter to say the Jewish school cannot be approved for a variety of reasons, not just because of its religious nature.
The unstated objective is that he’s trying to prevent a court from ruling in the school’s favor—a move that could theoretically open the floodgates to taxpayer dollars propping up sectarian schools across the country. Once that door is opened, it will be next to impossible to close.
That’s why this legal filing is a huge favor to people who support church/state separation.
(via Religion Clause. Portions of this article were published earlier)
Let religious institutions pay their own way on things they want. Since they pay no taxes, they don't get to put their hands on taxpayer dollars.
Aren’t the churches and synagogues enough to get their messages out? Why are they expecting tax payers to do for them what they have clearly failed to do for themselves? It is NEVER the job of our secular government to backstop anyone’s religion. Religious schools should never get a penny of public money for any reason.