Moment Debate | Should the Supreme Court Permit Public Funding for Jewish Charter Schools?

INTERVIEW WITH PETER DEUTSCH

Should the Supreme Court permit public funding for Jewish charter schools? | Yes

Should the Supreme Court permit public funding for Jewish charter schools? Yes. The Supreme Court has not ruled specifically on religious charter schools, but it has ruled on plenty of other cases concerning government money going toward religious schools. People think of the First Amendment as protecting free speech and the free exercise of religion. But it also prohibits religious discrimination. So if the government provides public assistance to private schools, it’s unconstitutional to deny those benefits to religious schools simply because they are religious. Multiple Supreme Court cases have affirmed this position. Examples include vouchers in rural Maine, busing for private and remedial schools in New York and services for special needs. Government doesn’t have to provide these services to private schools, but if it does, it can’t deny them to religious schools. School choice is the civil rights movement of the 21st century. Why should only wealthy parents be able to choose where and how their children will be educated? Florida has been at the forefront of this movement, from charters to vouchers. Florida’s universal voucher plan of up to $8,000 per child is available to families of all incomes and religions, for any schools. Vouchers in Florida have been transformational and have changed the landscape of Jewish education there. Vouchers can provide reduced or potentially even free Jewish education for all Jewish kids. Right now, $160 million a year is going to Jewish education in Florida from the state of Florida, and every year it will be more. In states like New York, California or Massachusetts, school voucher programs are unlikely to be legislatively enacted, but those states do have charter school systems. So the religious charter school question is particularly relevant for Jewish kids in those states seeking access to Jewish education. If a state’s charter program funds privately operated schools, religious charters cannot be excluded. For years, this degree of church-state involvement was unthinkable. What changed? Over the past 20 years, the Supreme Court has increasingly recognized and sought to eliminate religious discrimination in public programs. We expect the Supreme Court will make clear that religious charter schools are constitutional—that states can’t reject a charter application simply because the school is going to integrate Judaism and religious learning.

School choice is the civil rights movement of the 21st century.

Who can operate a charter school? If you are the Nazi Party, or the Proud Boys, or the Freedom From Religion Foundation, and you apply to operate a charter school, you can’t be rejected on the basis of your ideology. The only groups that can’t get a charter to operate a charter school, under current law, are religious groups. And that exclusion stands only because of a previous 4-4 Supreme Court deadlock that prevented a religious charter school from operating in Oklahoma. Most cases like this involve Christian schools. Is there anything different about the proposed Ben Gamla Jewish charter school? When I created the first Ben Gamla charter schools 20 years ago, the law was understood to prohibit religious instruction in charter schools. So Ben Gamla charter schools currently offer not Jewish religion but Hebrew history, language and culture, and teachers and administrators are very careful not to teach religion. Teachers discuss Hanukkah, for instance, as a historical event, in which Jews rose up against the Greeks for religious freedom. Teachers can say “many Jews believe” that there was a miracle with a vial of oil. What the teacher can’t say in a non-religious public charter school today is that, affirmatively, there was one vial of oil that lasted eight days. That would assert there was a miracle. At the Ben Gamla charter schools we celebrate Purim with cultural-historical activities, not religious ones. At Passover, we bake matzah and discuss slavery and freedom. But when the Supreme Court rules that charter schools can be religious, Ben Gamla Jewish Charter Schools will discuss Hanukkah, Passover, Purim and the Torah in a religious framework, using different language that integrates Jewish religious learning. There is a tragic void in the lack of education in the Jewish community in America today. More than 95 percent of American Jewish kids effectively get no Jewish education, and the state of the Jewish community in America reflects that. After three generations of almost total ignorance, why are we surprised at young people’s opinions, their intermarriage rates, their support for Mamdani or the ayatollahs? There’s anecdotal data that October 7 has made many Jews reassess their connection to Judaism, but not to Jewish education for their children. Religious charter schools will give the opportunity to tens of thousands of Jewish kids who currently get no Jewish education to get a quality Jewish and secular education for free. When that occurs, the Jewish community in America will be fundamentally changed forever.

INTERVIEW WITH ALEX J. LUCHENISTER 

Should the Supreme Court permit public funding for Jewish charter schools? | No

Should the Supreme Court permit public funding for Jewish charter schools? No. Allowing public money to flow directly to religious charter schools would violate the religious freedom of students and parents. Really, there shouldn’t be any religious charter schools, because charter schools are by definition public schools. They’re fully publicly funded. They often take specialized approaches, or have private companies handling their day-to-day operations, but they’re still subject to all the laws governing public schools. Many states already offer tuition vouchers that can be used at private schools, including religious schools, even if the latter are exempted from anti-discrimination rules. Those have been ruled constitutional because it’s parents, not the state, who decide where to spend the money. The battle now is whether religious schools can receive public money to operate as charter schools that are intentionally religious in nature. That would be a drastic change. Taxpayers would have to fund schools in opposition to their own convictions. In localities where all or most of the schools are already run as charter schools, religious charter schools might eventually replace other types, effectively coercing parents to send their children to a religious school for lack of alternatives. Parents shouldn’t have to send kids to a school teaching a religion different from their own. Public schools in our country have traditionally been secular and open to all students.

Taxpayers would have to fund schools in opposition to their own convictions.

If religious groups could run charter schools, students could be required to attend religious services or be indoctrinated in the tenets of a religion their parents don’t want them to practice. That’s contrary to a long line of Supreme Court cases that prohibit schools from promoting any religion, teaching it as truth or proselytizing—exactly what some of these schools propose to do. Many of the religious schools that have been involved in these potentially upcoming legal cases won’t commit to nondiscrimination requirements that apply to charter schools. It’s clear that some of them intend to discriminate on sexual orientation and gender identity in hiring. Two of the schools’ applications state that they reserve the right to refuse accommodations for students with disabilities if they are contrary to the religious tenets of the school—though it’s not clear exactly what that would mean. For years, this degree of church-state involvement was unthinkable. What changed? A series of Supreme Court decisions have weakened the separation of church and state. In Zelman v. Simmons-Harris in 2002, the court held it was constitutional to give parents vouchers that they could use for tuition at religious schools. The reasoning was that any spending decisions were the parents’ and not the government’s. Our organization disagreed with that decision, but that’s what the court decided. And then in a pair of cases in the last ten years, Espinoza v. Montana and Carson v. Makin, the court ruled that if a state does create a voucher or voucher-type program to allow parents to fund private schools, it must also allow that funding to go to religious schools, because excluding them would violate the free exercise clause of the First Amendment. Now, groups representing the proposed religious charter schools—there are several that may bring test cases, including a proposed Jewish religious school, Ben Gamla, in Oklahoma—are arguing that treating religious charter schools differently from secular ones is also discriminating against religion. But again, charter schools are not private schools; they’re public, part of the government. The government is making the funding decisions; individual parents are not. So the cases they’re citing don’t apply. Last summer, a case brought to the Supreme Court on behalf of an Oklahoma Catholic school on this issue deadlocked 4-4 because Justice Amy Coney Barrett recused herself, apparently because of a friend’s involvement with the school. Supporters are hoping that won’t happen next time. Most cases like this involve Christian schools. Is there anything different about Ben Gamla, the proposed Jewish charter school? The current Ben Gamla charter schools are open to non-Jews and offer Hebrew language and culture in a secular framework. The new application, which challenges the existing framework, would offer intense immersion in the Jewish religion throughout the curriculum. Leaders in the Oklahoma Jewish community have opposed the application, saying there’s no large-scale market among Oklahoma Jewish students for this kind of Jewish education and criticizing Ben Gamla leadership for not consulting them. It’s not clear whether the school would be viable as envisioned. Of course, all the schools applying for these charters assert that anyone of any religion can attend them. But would such a school appeal to non-Jewish parents?