BySimon Rocker, Simon Rocker
Here are extracts from the Court of Appeal decision in which Lord Justice Sedley, Lady Justice Smith and Lord Justice Rimer set out the reasons for finding JFS’s admissions policy unlawful.
“M is the child of a father, E, who is Jewish by birth and of a mother who is Jewish by conversion. He would like to be admitted as a pupil to JFS (formerly the Jews' Free School) in the London Borough of Brent. The school is oversubscribed and is therefore entitled to select pupils according to its admissions policy, provided the policy is lawful.
The present policy is to give priority to children who are recognised as Jewish by the Office of the Chief Rabbi (the OCR) or are following a course of conversion approved by the OCR.”
“The OCR does not recognise the validity of M's mother's conversion to Judaism because it was conducted in a Progressive and not an Orthodox synagogue. M, who is not following a course of conversion, is accordingly not eligible for admission to JFS. Since a child is regarded by the OCR (and others) as Jewish only if his or her mother is Jewish, M has been refused admission to the school.”
“It is E's case that being a Jew, whether by descent or by conversion, is a question of ethnicity, with the result that to refuse a child admission to a school because his mother is not Jewish constitutes direct race discrimination against him, on the ground both of his own and of his mother's ethnicity.”
“JFS as respondent, the Secretary of State for Children, Schools and Families as an interested party and the United Synagogue as an intervener contest both claims. They say that the criterion itself is a purely religious, not a racial, one.”
“The conclusion of the court is that the requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or by conversion, is a test of ethnicity which contravenes the Race Relations Act 1976. If the discrimination is direct, as we consider it is, it cannot be justified. If, contrary to this finding, the discrimination is indirect, we consider its purpose to be selection on the basis of ethnicity and therefore not to constitute a legitimate aim.”
“The law today forbids both racial and religious discrimination. But faith schools are exempted from the prohibition of religious discrimination because their purpose is to educate children in what are generally the religious beliefs of their parents.”
“So long as a maintained faith school is undersubscribed, it cannot use religious criteria to allocate places. But once it is oversubscribed, it can lawfully restrict entry to children whom, or whose parents, it regards as sharing the school's faith.”
“No school, however, is permitted to discriminate in its admissions policy on racial grounds.”
“M was refused admission to JFS because his mother, and therefore he, was not regarded as Jewish. The school has been perfectly open in giving this as the ground of non-admission. There are of course theological reasons why M is not regarded as Jewish, but they are not the ground of non-admission: they are the motive for adopting it.
If it were otherwise, a person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly without breaking the law. The reason why it is not so is that the ground of any such discrimination would be that the victim was black; its religious motive would be immaterial.”
“It appears to us clear (a) that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion, and (b) that to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds. The motive for the discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful.
Nor does the factuality of the ground. If for theological reasons a fully subscribed Christian faith school refused to admit a child on the ground that, albeit practising Christians, the child's family were of Jewish origin, it is hard to see what answer there could be to a claim for race discrimination.”
“The refusal of JFS to admit M was accordingly, in our judgment, less favourable treatment of him on racial grounds. This does not mean… that no Jewish faith school can ever give preference to Jewish children. It means that, as one would expect, eligibility must depend on faith, however defined, and not on ethnicity.”
For the full judgment, click here