As Attorney General Gentner Drummond and the Statewide Charter School Board sling mud in and out of court, they are co-defendants in a federal lawsuit filed by a religious charter school the board supports despite rejecting its application. In doing so, the board cited the Oklahoma Supreme Court’s ruling in Drummond’s prior push to block St. Isidore of Seville, a Catholic charter school.
The National Ben Gamla Jewish Charter School Foundation and its founder, former Rep. Peter Deutsch (D-FL20), are asking the U.S. District Court for the Western District of Oklahoma to rule that the nonsectarian clause of the Oklahoma Charter Schools Act is unconstitutional.
A ruling for Ben Gamla could clear the way for religious charter schools in Oklahoma, but a ruling against the school — or the inclusion of additional parties — could spur appeals and potentially place the state back before the U.S. Supreme Court. In a filing, the board suggests SCOTUS is “primed” to answer the underlying constitutional questions following its recent split decision in the St. Isidore case, from which Justice Amy Coney Barrett recused.
While the legal battle is tee’d up in federal court, with several party filings already and a handful of nonparties hoping to intervene, Drummond is challenging the board in Oklahoma County District Court, setting up a local legal and political fight.
In a press release announcing his state court filing, Drummond said the SCSB is “playing politics with taxpayers’ money.”
“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,” Drummond said. “I will not allow this board to rig the record at taxpayers’ expense.”
In an interview March 17, SCSB Chairman Brian Shellem suggested Drummond’s statement is disingenuous.
“I think it is quite ridiculous,” Shellem said. “I would expect more from our attorney general (…). He is either intentionally misleading the public or is grossly negligent, not understanding the facts of what has really transpired with the school we have denied.”
Drummond’s petition seeks a “new and complete rejection letter — that incorporates all valid, independent, non-constitutional grounds for rejection.”
“By deliberately limiting its rejection to the nonsectarian requirement, the board has improperly engineered a record that omits independent bases for rejection,” Drummond wrote in the petition. “The board’s refusal to list all of the reasons for rejecting the revised application is not coincidental. It is a deliberate decision designed to avoid issues of state law when Ben Gamla files a lawsuit seeking to overturn the Oklahoma Supreme Court’s decision (from 2024 that held St. Isidore’s contract was unconstitutional).”
Shellem disagreed with Drummond’s suggestion.
“He is wanting us to make up more reasons why the school is being turned down for authorization,” Shellem said. “And I want to be abundantly clear: The only reason that school is being turned down is because of their religious teaching component of their application.”
‘Easier to lose’: Drummond seeks deeper denial letter
In terms of non-constitutional reasons he says the proposed Jewish charter school should be denied, Drummond’s petition points to projected enrollment discrepancies between Ben Gamla’s letter of intent and the school’s application.
Submitted Nov. 3, Ben Gamla’s letter of intent said its projected enrollment would be “approximately 40 students” and indicated its intention to provide instruction for high school grades. But in the school’s application submitted Dec. 30, enrollment projections had increased. In that document, the school’s first-year minimum enrollment was projected at 335, with a goal enrollment of 400 students. The application also expanded the school’s scope to include kindergarten through third grade.
In the SCSB’s first rejection letter Feb. 13, reasons for denial included the projected enrollment discrepancies and the nonsectarian provision of the Oklahoma Charter Schools Act, among others.
Drummond also argues the revised application did not address deficiencies in Ben Gamla’s proposed governing board because Brett Farley, executive director of the Catholic Conference of Oklahoma, was listed as the “parent member” despite “no indication” he has a child, grandchild or ward with intent to enroll in the school.
“Naming an official of an organization whose institutional mission may be in tension with the state purposes of a Jewish charter school as a governing board member, without any explanation in the revised application, raises unresolved questions about whether the statements of assurance provided by Ben Gamla’s revised governing board are accurate and free of the sort of qualified compliance language that originally warranted rejection,” Drummond wrote.
But in its April 2 response, the board argued Drummond does not “possess a clear legal right to the relief sought” and that it complied with its legal duties.
Instead, attorney A.J. Ferate claimed Drummond’s argument relies “entirely on inappropriate assumptions.” The response also claims the board “typically presumes” a proposed charter school will designate a parent or grandparent to the board at a future date, because designating one with a student currently or previously enrolled while the school remains under development is “impossible because a child cannot be enrolled in a nonexistent school.”
Drummond’s petition argues the board selectively omitted deficiencies in its denial, citing gyrations with the board’s March decision to reject the revised application.
During the board’s March 9 meeting, a motion was initially read to include additional reasons for denial that SCSB staff determined had been remedied. After the motion was seconded, Shellem interjected, which prompted board member Damon Gardenhire to withdraw his second. The motion was amended, narrowing the reasons for denial to the school’s religious teaching component, the Oklahoma Supreme Court’s prior mandamus order and the nonsectarian clause in the OCSA. The amended motion passed unanimously.
Drummond suggested the change was nefarious.
“This was not the exercise of neutral administrative judgment,” Drummond wrote. “Rather, it was the deliberate suppression of valid bases for rejection to set up a constitutional challenge.”
Shellem rejected that argument and said he had not agreed with the language of the original motion, which included other reasons for denial that he and others felt had been sufficiently resolved.
In its response, the board also argued it has discretion over what grounds warrant a denial and is not required to list every reason. In a press release, Drummond claimed the board’s short list of denials aimed to set up a lawsuit that would be “easier to lose — not win” in federal court.
“A state agency that deliberately hobbles its own legal position is not doing its job — it is betraying Oklahoma taxpayers. I will not allow that,” Drummond said. “This petition has nothing to do with the religious character of this school. Those questions were settled by the Oklahoma and U.S. Supreme Courts. It is about demanding that a state agency follow the law and issue a complete and honest rejection letter.”
Shellem sees it differently.
“I would say that there are still questions in regards to the dispute between the U.S. Constitution and the Oklahoma Constitution,” Shellem said. “The U.S. Supreme Court heard the case of St. Isidore, and there was no decision rendered. (…) What stood was for Oklahoma — the Oklahoma Supreme Court’s ruling.”
But he rejected Drummond’s notion that that SCSB is looking for a legal or political fight.
“It would be nice to get it finally settled. That is what I would say. We are not hunting for a lawsuit. We were not looking for one,” Shellem said.
Ben Gamla school makes matters federal
In its March 24 complaint filed in the U.S. District Court for the Western District of Oklahoma, Ben Gamla requested a jury trial to issue an injunction declaring the nonsectarian clause of the OCSA violates the First Amendment and the 14th Amendment. The foundation is also seeking an injunction prohibiting the enforcement of the nonsectarian clause or any action “otherwise denying” the school’s eligibility on religious grounds.
“A system that precludes religious entities from obtaining generally available state benefits solely because of an organization’s religious character or conduct is unconstitutional unless the government can satisfy strict scrutiny,” wrote Robert McCampbell of GableGotwals and Eric Baxter of The Beckett Fund.
The federal suit also argues that Drummond has demonstrated “hostility” toward minority religions, harkening back to a brief he filed with the Oklahoma Supreme Court that argued allowing St. Isidore to operate would “require the state to permit extreme sects of the Muslim faith to establish a taxpayer-funded public charter school teaching Sharia law.” Ben Gamla’s filing also refers to a press release published following the May 2025 split decision in the St. Isidore case 2025, in which Drummond said the ruling “ensures that Oklahoma taxpayers will not be forced to fund radical Islamic schools.”
On March 24, a group called First Liberty initially responded to Ben Gamla’s federal lawsuit on SCSB’s behalf in a press release that claimed the board would have approved the application if not for the “ban on religious schools.”
“The board is simply doing what the Oklahoma Supreme Court requires, which is discriminate against faith-based applicants simply because they are religious,” said Hiram Sasser, executive general counsel for First Liberty.
In its answer to the complaint filed April 16, the board does not dispute any of the school’s claims, opting to admit to, or not respond to, the majority — sans two corrections. In fact, the answer reiterates the board’s “desire to approve” the application, but it cites the Oklahoma Supreme Court’s ruling as a barrier.
“The Oklahoma Charter School Board has been consistent in its position that it wants to approve charter schools that can improve outcomes for Oklahoma students,” Ferate said in an interview on April 21. “But when it comes to religious charter schools, the Oklahoma Supreme Court has told the Charter School Board that it must discriminate against those schools. While it would like to approve the schools, it has to follow what the Oklahoma Supreme Court has instructed it to do.”
In an April 21 interview, Baxter said he did not find the board’s response surprising. However, he said he was surprised by Drummond’s response.
“He brought the lawsuit against the board last time when they granted a religious charter school’s application. He is currently suing the charter board in state court, saying they did not do their job right, and then, in response to ours, he says, ‘Oh, I do not have any authority to enforce this law, you cannot sue me,'” Baxter said. “I think it shows that he knows he is on the losing side and he does not want to be seen on the losing side of an issue that is anti-religious while he is trying to run for governor.”
Drummond, through solicitor general Garry Gaskins, responded to Ben Gamla’s complaint April 14 with a motion to dismiss in which he argued he is not a proper party because he has “no role in the administration of” OCSA, including enforcement of the nonsectarian requirement. Nor does he process charter school applications or make decisions on them.
“Naming the attorney general as a defendant in this case was a transparent attempt to generate a headline, not to identify a proper party,” Gaskins said.
Gaskins cites Drummond’s writ of mandamus filing in Oklahoma County to compel a more comprehensive denial letter from the SCSB as evidence of Drummond’s lack of authority on the matters at hand.
“Far from controlling the board or enforcing the nonsectarian requirement against charter school applications, the attorney general was forced to petition a state court to compel the board to discharge its own statutory obligations,” Gaskins said. “An official who must resort to mandamus to influence the board’s conduct cannot plausibly be characterized as ‘enforcing’ the statute the board administers.”
‘Would like to get started’: Ben Gamla seeks preliminary injunction
In a motion for a preliminary injunction filed March 27, the proposed school asked the court to allow it to “participate in Oklahoma’s charter school program,” with arguments falling along similar themes as the original complaint. In the motion, school officials request a court date and a decision by May 22, which falls before the end of the school year and would give parents and the school “time to make plans for the upcoming school year.”
“I think this is urgent in the sense that we would like to get started in the new school year,” Baxter said.
In the motion, the school reiterated its argument that the Statewide Charter School Board’s denial was “unconstitutional.”
“The Supreme Court has made clear that governments cannot exclude otherwise eligible individuals and institutions from public benefit programs solely because they are religious unless the law satisfies strict scrutiny,” Baxter wrote. “Binding Supreme Court precedent forecloses any argument that defendants possess a sufficiently compelling interest to justify the restriction here.”
The motion also continues arguments that charter schools, despite receiving public funds, are private and not state actors.
“Controlling precedent establishes that a Ben Gamla School — a privately operated religious school organized under Oklahoma law for exclusively educational, charitable and religious purposes — would not be transformed into a state actor merely because it contracted with the state to provide educational services,” Baxter wrote.
In its response to the motion, the board expressed support for granting the preliminary injunction. The board argues that the Oklahoma Supreme Court’s 2024 decision does not apply to the U.S. District Court for the Western District of Oklahoma. The board’s reasoning is two-fold: It argues that one of the four parts of the ruling ignores “relevant decisions of the United States Supreme Court,” and that the other three parts are a state court’s analyses of federal law, which federal courts are not beholden to follow.
In response to the motion, Gaskins, on behalf of Drummond, said the request should be denied “as to the attorney general,” once again leaning on arguments that Drummond is not a proper party in the case. Gaskins also said the plaintiff’s claims were unlikely to succeed on their merits.
“Plaintiff’s entire case rests on the premise that the nonsectarian requirement in the Oklahoma Charter Schools Act violates the free exercise clause,” Gaskins said. “But that requirement has already been upheld. Six of the eight justices hearing the case at the Oklahoma Supreme Court concluded that the nonsectarian requirement is consistent with both the Oklahoma Constitution and the federal establishment clause and that charter schools are state actors whose religious exercise would constitute government endorsement of religion.”
In its reply, Ben Gamla’s legal team disputes Drummond’s response to the motion for a preliminary injunction, calling his arguments that he is not a proper party and cannot enforce the OCSA “half-hearted” and “wrong on both fronts.”
“This court should reject Drummond’s assertion that a divide in authority precludes injunctive relief,” Baxter wrote. “Courts regularly find that plaintiffs can show a likelihood of success on the merits even when a legal issue is unsettled. And given that the weight of Supreme Court precedent favors Ben Gamla, plaintiffs have made that showing.”
