With a new, legally binding attorney general’s opinion preventing a third vote on the fate of a twice-failed application for state sanctioning for Ben Gamla Jewish Charter School, the Statewide Charter School Board took the only action remaining on its special meeting agenda Friday.
The board voted 7-0 to file notice of appeal of a federal court order it requested and received, as its religious freedom attorneys ponder the next move with the proposal to open the nation’s first religious charter school with Oklahoma taxpayer money.
Board member Marshall Baker was absent and one seat on the board remains vacant.
Asked for its reaction, the Oklahoma Attorney General’s office called the board’s vote strange and vowed not to approve the expenditure of a single state dollar on an appeal the Board has no standing to bring.
“In April, the Board filed a brief in federal court supporting Ben Gamla’s motion. In September, the court granted the injunction the Board asked for,” said Leslie Berger, press secretary for the AG’s office. “As a general rule, a party that asks a court for an order and receives it cannot appeal. We are not aware of another instance in which a state board has asked a federal court for an injunction, gotten it, and then voted to appeal its own victory.”
The deadline to file a notice of appeal is Monday, according to Board Chair Brian Shellem, a gubernatorial appointee who has been unabashed in his vocal support for state sponsorship of openly religious schools.
Shellem scheduled Friday’s special meeting in hopes the board would consider a revised charter school application from former U.S. Rep. Peter Deutsch, of Florida, to open a Jewish charter school.
During Friday’s meeting, he lamented the fact that a third vote on the Ben Gamla school proposal was impossible.
“As we move forward, I want to remind us of a few things,” Shellem said. “The Oklahoma Constitution, Article 1, Section 1 — `the State of Oklahoma is an inseparable part of the federal union and the Constitution of the United States is the supreme law of the land.’ I know there has been lots of debate, what law are we going to follow?”
He then cited a late-September order by the U.S. District Court for the Western District of Oklahoma for a preliminary injunction against enforcement of state law prohibiting religious affiliation by charter schools.
Ben Gamla’s proponents made the request and the Statewide Charter board’s own attorneys, AJ Ferate and First Liberty Institute – who are on contract with the Oklahoma AG’s office – called the order “necessary for board members to comply with their oath of office,” in a public court filing.
“We’ve been issued an order,” Shellem said during Friday’s meeting. “This board always wants to be in compliance with that federal order as well. Considering where we are at today, we are bound not to be able to take a vote based on the attorney general’s opinion. So with that, we are left with one option left today.”
Then board member Jared Buswell made the motion to direct their attorneys to file a notice of appeal with the U.S. Court of Appeals for the Tenth Circuit by the Monday deadline, “in order to preserve all of our options and that we have further discussion with counsel at a future meeting to determine how and whether to pursue the appeal further.”
The revised charter school application failed to earn five votes needed for passage by the nine-seat governing board overseeing charter schools at an Oct. 12 meeting. The board split 4-3 with one member absent that day.
In February, the board voted 8–0 to deny state sponsorship and taxpayer funding for the proposed school, which would teach Judaism alongside traditional, secular school subjects, citing legal precedent that prohibits Oklahoma taxpayer funds from opening or supporting sectarian, religious charter schools.
Late Thursday, Attorney General Gentner Drummond issued a legally binding opinion that the Statewide Charter School Board would be breaking the law by voting a third time on a charter school application.
In response to an official request from Rep. Ronny Johns, R-Ada, and State Rep. Ellen Pogemiller, D-Oklahoma City, the new AG’s opinion says state law “establishes a closed, two-step application process: the Board accepts or rejects an application, then accepts or rejects one timely revised application. It authorizes no third vote, rehearing, reconsideration, or rescission.”
Andrea Eger covers a variety of topics for Oklahoma Watch. Contact her at aeger@oklahomawatch.org.
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