Jewish schools have been operating an unlawful admissions policy for more than 30 years, the Supreme Court concluded this week.

In a 5-4 ruling, the UK’s most senior judges dismissed an appeal by JFS against a ruling that the leading Jewish school had broken the Race Relations Act when it refused to admit a boy whose mother’s conversion was not recognised by the Office of the Chief Rabbi.

The boy, known only by the initial M, was allowed to join the school after the earlier ruling by the Court of Appeal. He and his father are members of a Masorti synagogue in London.

M’s father, who also cannot be named, said the Race Relations Act, as well as protecting Jews from prejudice, “also provides for the fair and equal treatment of all children within our educational system”.

The family’s solicitor, John Halford, said the ruling represented “a definitive end to six decades of exclusion of children who are devout in their Jewish faith, but considered by some to be not quite Jewish enough to enjoy the benefits of their community’s leading faith school”.

Of the nine judges who sat to hear the appeal by JFS in October, only two found wholly in the school’s favour. The other two in the minority found for the school with strong caveats.

One of the minority judges, Lord Brown, said that if the arguments put on M’s behalf were correct, JFS — and all other maintained or independent Jewish schools where admission depended on religious law — “have been operating an unlawful directly racially discriminatory policy for upwards of 30 years”.

Jewish schools, if oversubscribed, would now have to select “by reference only to outward manifestations of religious practice”, Lord Brown added. “The Court of Appeal’s judgment insists on a non-Jewish definition of who is Jewish.”

Lord Rodger, the other minority judge, described this as a “concocted” test that “might appeal to this secular court but ... has no basis in 3,500 years of Jewish law and
teaching”.

The finding that the school was guilty of direct discrimination against M on the grounds of his ethnic origins was reached by a majority of five judges, headed by Lord Phillips, the court’s president.

Two of the four minority judges took the view that JFS was guilty of indirect discrimination because it had failed to demonstrate that its policy was proportionate.

But Lord Phillips stressed that nothing in his ruling “should be read as giving rise to criticism on moral grounds of the admissions policy of JFS in particular or the policies of Jewish faith schools in general, let alone suggesting that these policies are ‘racist’ as the word is generally understood”. Other judges agreed.

But accepting that the court’s ruling “risks upsetting a policy of admission to Jewish schools that, over many years, has not been considered to be open to objection”, Lord Phillips said that “there may well be a defect in our law of discrimination” because it provided no defence of justification.

Those doubts were shared by Lady Hale, another of those who found against JFS. Perhaps, she said, the Jewish people should be allowed to follow religious laws that had allowed them to survive centuries of persecution.
“But if such allowance is to be made,” Lady Hale continued, “it should be made by Parliament and not be the courts”.

She suggested the Equality Bill, currently before Parliament, could be used to amend the Race Relations Act.

But the Equality and Human Rights Commission, which was given permission to put arguments to the court in support of M, welcomed the ruling and gave no indication that it would support a change in the law.

Trevor Phillips, who chairs the commission, said it intended “to work with the Chief Rabbi and other faith leaders to ensure that the broad interpretation of the Race Relations Act will not interfere with any family’s opportunity to choose an educational environment supportive of their beliefs”.

Lord Sacks welcomed the suggestion by Lord Phillips that “the issue at stake in this case may require legislative remedy”. But, the Chief Rabbi added: “these matters require careful reflection and consultation; and instant reactions would be inappropriate.”

The Board of Deputies said it would explore the possibility of a legislative change, “urgently and after consultation across the community”.