Are religious charter schools constitutional? After deadlocked SCOTUS decision, another Oklahoma case is trying to find out

A religious charter school case may be heading to the U.S. Supreme Court just over a year after the previous decision, which resulted in a 4-4 deadlock. Justice Amy Coney Barrett was absent from the decision, leaving lower court rulings in place that blocked the establishment of the Catholic charter school. Oklahoma courts had ruled that providing state funding to a religious school would have violated both state law and the First Amendment of the U.S. Constitution.

Now, a new challenge is emerging as Ben Gamla, a Jewish organization, seeks to become America's first religious charter school. This case centers around the nature and extent of permissible public aid for faith-based institutions under the First Amendment's establishment clause, which prohibits the government from making laws "respecting an establishment of religion."

Ben Gamla operates a network of secular charter schools in Florida and has applied for a religiously diverse charter school in Oklahoma. The proposed school would offer both secular and religious education. Charter schools in the United States began operating in earnest in 1991, and now 46 states and the District of Columbia permit their establishment.

The first charter school in the United States was City Academy High School, located in St. Paul, Minnesota. Charter schools differ from traditional public schools in that they are typically run by private organizations, funded through taxpayer money, and subject to federal and local antidiscrimination laws. However, they operate under charters that can be renewed or terminated depending on their performance.

Under Oklahoma's Constitution, public funds cannot support religious institutions. Historically, the U.S. Supreme Court also placed significant restrictions on aid to faith-based schools, but these limits were not as stringent as those enforced by Oklahoma and some other states. The "child benefit test" allowed certain forms of aid, such as reimbursing parents for transportation costs and textbook lending for secular instruction, as the direct beneficiaries were students rather than their schools.

Recent Supreme Court cases, however, have loosened the restrictions on aid to faith-based schools and families. 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. This ruling expanded the boundaries of permissible aid.

Three years later, in Espinoza v. Montana Department of Revenue, the court invalidated a tax credit program for contributions to student scholarship organizations, ruling that Montana's no-aid provision discriminated against people based on their beliefs. In 2022, the court invalidated Maine's attempt to exclude faith-based schools from a tuition assistance program, ruling that the program violated the free exercise clause as it impermissibly excluded religious institutions and families.