In May 2025, the Supreme Court handed down a 4–4 split decision in Oklahoma Statewide Charter School Board v. Drummond. That deadlock left intact a ruling from the Oklahoma Supreme Court that denied what would have been the nation’s first publicly funded religious charter school, St. Isidore of Seville Catholic Virtual School. In line with recent decisions cutting into the separation of church and state, the court had been expected to rule in favor of the religious school. However, because Amy Coney Barrett recused and one conservative sided with the state, the court left the state decision in place, meaning that states can still exclude religious schools from charter programs.

Because the court did not reach the underlying constitutional questions, the door remains ajar. And as news has emerged that the same legal apparatus that set up and represented St. Isidore is now organizing a Jewish charter school in Oklahoma, many observers see it as an attempt to push the same issue—this time with a majority of conservatives ready to strike down religious public funding bans across the country.

At issue in *Drummond *were two significant constitutional questions. First: Are privately run charter schools state actors if they are publicly approved and funded? And second: If they are public, does the First Amendment’s free exercise clause prohibit a state from excluding religious schools from its charter school program—or does the establishment clause require it to exclude them?

In 2023, the Statewide Virtual Charter School Board approved St. Isidore as a virtual charter school. However, contrary to state law, the board excluded terms from its standard contract with charter schools requiring any charter school to be “nonsectarian in its programs, admission policies, employment practices, and all other operations.” This exception raised concerns that the school could reserve the right to discriminate in admissions, hiring, or discipline on religious grounds, potentially barring or expelling LGBTQ+ students or staff or denying services to students with disabilities.

As Rachel Laser, president and CEO of Americans United for Separation of Church and State, pointed out in an interview, “The establishment clause provides us the freedom to control our own bodies, freedom to live as LGBTQ+ people, freedom to read and learn, freedom to access health care on equal grounds with others, freedom to access jobs and stores and public accommodations, freedom to access social services, and freedom to receive a good public education.”

Oklahoma Attorney General Gentner Drummond filed a lawsuit requesting a mandamus action to revoke the contract, arguing that by virtue of being publicly funded; open to all; subject to state oversight, testing, and civil rights and disability laws; and revocable by the state, Oklahoma charter schools are functionally public schools. And as Justice Sonia Sotomayor put it at oral argument, “The essence of the establishment clause was we’re not going to pay religious leaders to teach their religion.”

However, the St. Isidore attorneys argued that excluding schools solely because of their religious natures violated the free exercise clause. Drawing on recent U.S. Supreme Court cases like Espinoza v. Montana Department of Revenue and Carson v. Makin, they argued that once a state offers a generally available public benefit, it cannot flatly exclude religious applicants on the basis of religion, and they contended that charter school status was such a public benefit.

The Oklahoma Supreme Court rejected that argument in 2024, and because the U.S. Supreme Court split evenly on the issue, that ruling remains in place.

That brings us to the latest development: a new effort led in part by some of the same board members as St. Isidore and backed by the same legal organization to establish another state-funded, religious charter school, Ben Gamla Jewish Charter School. According to the organization behind it, the school would serve Jewish families who view religious education as “a requirement of the faith.”

Notably, this is not a grassroots push from Oklahoma’s Jewish community. As Rabbi Daniel Kaiman told the Jewish Telegraphic Agency, “When I called around to other Jewish leaders in Tulsa and Oklahoma City, none of us knew anything about it.” Rather, this appears to be a deliberate effort to bring a religious charter under legal review in a context where the religious applicant is not Christian but Jewish.

Proponents may be pinning their hopes on the idea that a non-Christian charter will make it harder for opponents to frame the issue strictly in terms of “Christian privilege.” “As a Jew, I am angered that my faith is being misused to advance a Christian nationalist agenda,” said Laser. “This is not what the majority of Jews in Oklahoma want. It is actually counter to what they want.” She pointed out that in lawsuits implicating the separation of church and state across the country, many of the strongest supporters of that separation are clergy members and other people of faith, as a necessity to maintain the integrity of the faith.

If that school’s application under a charter school law succeeds and it makes its way back to the full U.S. Supreme Court, it is likely to have significant legal consequences. The conservatives on the court have been very solicitous of religious freedom arguments at the expense of the separation of church and state—as Justice Sotomayor has put it, allowing the free exercise clause to trump the establishment clause. If the court were to rule in favor of the school, public education funding could be transformed.

States with charter laws might be legally compelled to fund religious charters not as an exception but as a matter of constitutional law. The result would be the institutionalization of sectarian schooling funded by public money across the country under a veneer of neutral school choice. In this, Laser sees a broader effort from organizations on the extreme religious right: “This is part of a larger campaign by Christian nationalists to infuse Christianity into public schools. It’s a two-pronged strategy about indoctrinating a new generation of Americans into Christian nationalist ideology and diverting public dollars to fund that agenda.”

Attempts to drive public funds toward religious education are not unique to Oklahoma. Perhaps anticipating a win for Ben Gamla, Tennessee Attorney General Jonathan Skrmetti recently issued an opinion that excluding religious schools from public funding violates the free exercise clause of the U.S. Constitution. Despite a warning from the Colorado Board of Education, a Christian school is attempting to collect public funds through the state’s contract education program. With the wind at their backs, it is very likely that religious conservatives will continue pushing the issue until the Supreme Court gives them their way.

Supporters of the separation of church and state dodged a bullet in Drummond, but it is unlikely that the far-right Supreme Court will set the issue aside forever. And when the justices finally do take up the issue again, the country will confront a decision not only about charter schools but about the character of the public sphere itself. Whether the country will still hold out the promise of a common, secular education—as a safeguard for pluralism rather than a threat to it—will depend on the court’s conservatives.

Laser would remind them of the history that motivated the religious liberty clauses of the First Amendment: “Separation of church and state stops divisions that have been proven to lead to violence and death. The Founders were closer to religious wars and other sectarian conflicts, and they knew that our democracy depends on the separation of church and state.”