Federal judge allows Ben Gamla religious charter school suit to proceed

Oklahoma has 30 days to appeal ruling to the 10th Circuit Court

A federal judge in Oklahoma has allowed Ben Gamla, a Jewish organization operating Hebrew-English charter schools in Florida, to pursue its First Amendment challenge to the state’s denial of its religious charter school application. Judge David L. Russell ruled Sept. 24, 2026, that the organization has standing to claim that state officials violated its rights to free exercise of religion.

The order does not resolve whether Oklahoma must admit religious charter schools. It allows the application to move forward while the court weighs the underlying constitutional questions, and Oklahoma has 30 days to appeal the judgment to the 10th Circuit Court of Appeals.

Ben Gamla operates a network of secular charter schools in Florida that teach in Hebrew and English. Its Oklahoma application proposes a school that would provide both secular and religious education. The state denied the application earlier this year, and the organization filed suit.

The ruling is the latest development in a yearslong legal dispute over whether religious charter schools may receive public funding. Just over a year ago, the U.S. Supreme Court deadlocked 4-4 in Oklahoma Statewide Charter School Board v. Drummond, a case about whether the state could fund St. Isidore of Seville Catholic Virtual School. Justice Amy Coney Barrett recused herself without explanation, leaving the court evenly split and leaving in place lower court rulings that had blocked the school. Oklahoma courts had agreed that allowing state funding to a religious school would have violated both Oklahoma law and the First Amendment to the U.S. Constitution.

Coming on the heels of the Catholic charter school case, Ben Gamla might seem, as New York Yankees baseball great Yogi Berra once said, like a case of “déjà vu all over again.” Yet the litigation over Ben Gamla is different from the previous case involving St. Isidore of Seville Catholic Virtual School.

The case sits at the intersection of two strands of First Amendment law: the establishment clause, which forbids the government from making laws “respecting an establishment of religion,” and the free exercise clause, which says the government cannot make a law “prohibiting the free exercise” of religion.

Under Oklahoma’s Constitution, no public funds can support religious institutions — a standard stricter than the U.S. Constitution’s own limits. Historically, the U.S. Supreme Court also placed significant limits on aid to faith-based schools, although not as strict as those enforced by Oklahoma and some other states. Under what is known as the “child benefit test,” the court allowed some forms of aid, such as laws reimbursing parents for the costs of transportation to school and lending textbooks for secular instruction, because the direct beneficiaries were students rather than their schools.

Three recent Supreme Court cases, however, loosened those restrictions.

In 2017’s Trinity Lutheran v. Comer, the court ruled that denying faith-based institutions generally available benefits for which they are otherwise qualified violates the First Amendment’s free exercise clause. The case arose after a church preschool in Missouri was denied funds from a public program to improve playground safety. “Excluding faith-based institutions and believers solely because they are religious ‘is odious to our Constitution,’” the court emphasized. Russo wrote that the decision ushered in a new era of the court’s First Amendment jurisprudence by expanding the boundaries of permissible aid.

Three years later, in Espinoza v. Montana Department of Revenue, the court held that a Montana program excluding religious schools from a tax-credit scholarship program discriminated against people based on their beliefs. The state constitution prohibits public aid to “sectarian” schools, so Montana did not allow families that received these scholarships to use them at religious schools. The court reasoned that using the scholarships at faith-based schools would be acceptable under the U.S. Constitution’s establishment clause. The court added that because Montana’s rule separated religion and state more strictly than the establishment clause, it was unconstitutional — a distinction that may prove important in the Ben Gamla case.

In 2022, the court took up Carson v. Makin, a case from Maine. The justices invalidated Maine’s attempt to exclude faith-based schools from a program providing tuition assistance to families who lived in areas without their own public schools. The court reasoned the program was not “neutral” toward religion because it impermissibly excluded otherwise eligible institutions and families solely because they were religious.

In his order, Russell specifically cited the three recent Supreme Court decisions, among others, as supporting Ben Gamla’s argument that the U.S. Constitution permits aid to faith-based schools.

In a notable contrast with the St. Isidore litigation, Russell’s ruling relied on federal case law rather than Oklahoma’s state constitutional provisions. In 2024, when the Supreme Court of Oklahoma refused to let the state open St. Isidore, the justices primarily relied on the state constitution’s prohibition against using public money to benefit or support any religious institution. Charles J. Russo, the Joseph Panzer Chair in education and a research professor of law at the University of Dayton, wrote in The Conversation that the reliance on federal grounds strengthens the chances the dispute may reach the U.S. Supreme Court and produce a different outcome than the deadlocked St. Isidore case. Russo predicted that Ben Gamla “may turn out to be the next step in the Supreme Court’s increasingly friendly approach to the important question of state aid to faith-based schools, their students and their parents.”

Russell’s order emphasized that it “does not express a judgment on the wisdom on the State of Oklahoma opening up its coffers to charter schools of disparate philosophical or educational provisions.” Having done so, however, state officials cannot “single out religious schools for exclusion solely because of their religious character.”

The case arrives against the broader backdrop of the charter school movement, which began in earnest in the United States in 1991, starting in Minnesota. Forty-six states and the District of Columbia now permit charter schools to operate. Charter schools are publicly funded but typically run by private organizations under charters that can be renewed or terminated based on whether schools meet stated goals. While free from many state laws and regulations on staff and curricula, charter schools remain subject to federal and local antidiscrimination laws.

Charles J. Russo is the Joseph Panzer Chair in education and research professor of law at the University of Dayton. This article is republished from The Conversation under a Creative Commons license. The views and opinions expressed in the original commentary are solely those of the author.