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When the U.S. Supreme Court deadlocked this year in a case over whether charter schools can be religiousexperts said it wouldn’t take long for the question to re-emerge in another lawsuit.

They were right.

In Tennessee, the nonprofit Wilberforce Academy is suing the Knox County Schools in federal court because the district refuses to allow a Christian charter school. Attorney General Jonathan Skrmetti is on the school’s side. He issued an opinion last month that the state’s ban on religious charter schools likely violates the First Amendment.

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“Tennessee’s public charter schools are not government entities for constitutional purposes and may assert free exercise rights,” he wrote to Rep. Michele Carringer, the Knoxville Republican who requested the opinion.

The legal challenge in Tennessee comes as a Florida-based charter school network prepares to submit an application to the Oklahoma Charter School Board for a Jewish virtual charter high school. Peter Deutsch, the former Democratic congressman who founded the Ben Gamla charter schools, began working on the idea long before the case over St.

Isidore of Seville Catholic Virtual School even went to court. The 4-4 tie in May means that an Oklahoma Supreme Court decision blocking the school from receiving state funds still stands.

“The prior decision shows that there’s an open question here that needs to be resolved,” said Eric Baxter, vice president and senior counsel at Becket Fund for Religious Liberty, a law firm representing the National Ben Gamla Jewish Charter School Foundation. “We hope the court will get it right this time. We hope the federal courts get it right without having to go to the Supreme Court.”

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Idaho also confronted the issue earlier this year. The state’s first charter, Brabeion Academy, initiallypromotedthe school as Christian. But it was approved in August as a nonreligious school and will open as such next fall.

Deutsch, Skrmetti and other supporters of faith-based charter schools base their argument on three earlier Supreme Court rulings allowing public funds to support sectarian schools. They say that excluding religious organizations from operating faith-based charter schools is discrimination and violates the Constitution. But leaders of the charter sector and public school advocates argue that classifying charter schools as private would threaten funding and civil rights protections for 3.7 million students nationwide.

“Unless and until the U.S. Supreme Court takes up a future case and rules otherwise, we advise all charter school associations and public charter schools to adhere to the letter and spirit of the law in their respective states,” Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, said in a statement.

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‘Not on our watch’

When the Supreme Court considered St. Isidore, Deutsch, was prepared to advocate for Jewish congregations to open schools that not only teach their language, but also their faith. He called the case “a historic opportunity” to bring Jewish education to thousands of children.

To Oklahoma Attorney General Gentner Drummond, the debate is settled, for now. In November, he said his office would “oppose any attempts to undermine the rule of law.”

Americans United, which advocates for maintaining church-state separation, has also issued a warning over the new school. The organization represented parents and advocates in a separate case over the school.

“Religious extremists once again are trying to undermine our country’s promise of church-state separation by forcing Oklahoma taxpayers to fund a religious public school. Not on our watch,” Rachel Laser, president and CEO, said in a press release.

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The legal fight over religious charter schools began in 2023, when the Oklahoma Virtual Charter School Board voted 3-2 to approve a charter for St. Isidore, setting off a closely watched case that spanned two years.

At the time, the Jewish Federation of Greater Oklahoma City, a nonreligious group, called the charter board’s decision unconstitutional. Rachel Johnson, the group’s executive director, didn’t return calls or emails requesting a comment on Ben Gamla’s proposal.

None of the members who originally voted on St. Isidore serves on the state’s new Oklahoma Charter School Board.

But for one person involved with Ben Gamla’s application, this is familiar territory. Brett Farley is on the proposed school’s board, according to a letter of intent the foundation submitted to the charter board in November.

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Farley once held a top position with the Wecial Oklahoma Gp and is also executive director of the Catholic Conference of Oklahoma, which focuses on public policy issues involving the church. While preparing the St. Isidore application, Farley connected with Notre Dame law Professor Nicole Stelle Garnett, whose scholarly work formed the basis of the legal argument for the school.

Garnett’s position is that nonprofits running charter schools are like private contractors, and as with other publicly funded programs, can’t be excluded just because they are religious. She’s also close friends with Justice Amy Coney Barrett, who recused herself from the St.

Isidore case. Experts speculated that Chief Justice John Roberts sided with the three liberals on the court, resulting in the 4-4 tie.

‘Passion for religious freedom’

The virtual school, the intent letter says, would initially enroll about 40 students, focusing on “college readiness, while developing deep Jewish knowledge, faith and values within a supportive learning community.”

But some are surprised Deutsch isn’t making his bid for a Jewish charter school in Florida, where his existing, non-religious charter schools have thrived.

“I think Florida could be a good option given the new attorney general’s passion for religious freedom,” said Daniel Aqua, the director of special projects at Teach Coalition, a nonprofit that advocates for Jewish education

The demand for a Jewish charter school would be much higher in Florida, which has an estimated Jewish population of nearly 762,000, compared with about 9,000 in Oklahoma.

Charter founders in Florida submit their applications to local school districts first. The state recently added colleges as authorizers, but Oklahoma, where organizers can file applications directly with the state charter board, offers a streamlined process.

‘Public Christian school’

But efforts to create publicly-funded religious schools are not limited to the charter sector. A new school in Colorado, Riverstone Academy, calls itself the state’s “first public Christian school.” Now serving 30 students in Pueblo, south of Colorado Springs, Riverstone is what is sometimes referred to as a “contract” school because districts sign agreements with private organizations to provide education services. In this case, Education reEnvisioned, one of the state’s 21 boards of cooperative educational services, or BOCES, authorized the school.

In October, the Colorado Department of Education warned Ken Wittthe BOCES’ executive director, that the school’s per-student funding is at risk because it is “not operating in a nonsectarian nature.” The letter also went to District 49, near Colorado Springs, one of Education reEnvisioned’s member districts.

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In a responseWitt wrote that he was “alarmed at the threat” that the school might not receive funding. “We did not and legally cannot discriminate against this school on account of its religious affiliation,” he wrote. Examining Riverstone’s curriculum to determine if the school is truly sectarian, he said, would be “unconstitutionally entangling and discriminatory against different forms of religion.”

Witt told The 74 that funding usually doesn’t flow from the state to a new school until January, so it’s too soon to know whether officials will withhold funds.

‘Keep coming back’

“You’re going to see those within the charter sector and outside of it basically taking the same approach” — arguing that private groups delivering religious instruction can’t be denied public funds, said Preston Green, an education professor at the University of Connecticut.

To Green, Riverstone’s identity as a “contract” school calls to mind a 1982 case, one that Garnett and other proponents of religious charter schools often highlight when they say that charters are not “state actors.” InRendell-Baker v. Kohnthe Supreme Court said a Massachusetts private school that received public funds for educating teens with behavior problems did not act under the “color of state law” when it fired six employees.

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The question, experts say, is not if, but when the Supreme Court will eventually see another case about religious public schools Justice Barrett won’t have the same reason to recuse herself, Green said, and he’s not convinced that Roberts would side with the liberals a second time.

The advocates, he said, “keep coming back at this because they think that they’ll get the votes.”

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