Faith school's admissions policy discriminatory, says appeal court
Afua Hirsch and Riazat Butt • The Guardian
A Jewish school that prioritised applications from children with Jewish mothers discriminated on grounds of race, the Court of Appeal ruled today, in a landmark decision on the admissions criteria used by faith schools.
The ruling follows an appeal brought on behalf of a 12-year-old boy known as M, who was refused admission to JFS, previously known as the Jews' Free School, in Brent, London.
M, a practising Jew who regularly attends a progressive synagogue, was told he could not be admitted to the school because his mother had converted to Judaism in a procedure not recognised by the Chief Rabbi.
Overturning a previous judgment in favour of the school, the Court of Appeal ruled that a policy determining eligibility based on a person's descent, rather than religious practice, amounted to racial discrimination.
"It appears clear to us… that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion," Lord Justice Sedley said. "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 controversial ruling comes after both the government and the United Synagogue strongly contested the claim that the school's admissions policy was discriminatory, arguing that the criterion was a purely religious and not racial one.
Faith schools are exempted from the law prohibiting discrimination on grounds of religion or belief, to enable them to provide education in line with their religious beliefs.
"Once [a faith school] is oversubscribed, it can lawfully restrict entry to children whom – or whose parents – it regards as sharing the school's faith," the court said. "No school, however, is permitted to discriminate in its admissions policy on racial grounds."
M's legal team applauded the judgment. "We welcome the strong statement by the Court of Appeal that the fundamental right to equality before the law regardless of race applies to the admissions criteria of a faith school," said John Halford, a solicitor at Bindmans who represented M's father, referred to as E.
"It is unlawful for a child's ethnic origins to be used as the criterion for entry to a school. Such a practice is even more unacceptable in the case of a comprehensive school funded by the taxpayer," Halford added.
The ruling was also welcomed by groups supporting the opening up of faith schools. "Anything that prevents discrimination and encourages faith schools to widen the range of pupils they admit is good news," said Rabbi Dr Jonathan Romain, chair of the Accord Coalition, which campaigns on reforming the law on faith schools.
However, some Jewish groups, along with the Chief Rabbi Sir Jonathan Sacks, condemned the ruling, saying that the principles underlying membership of the Jewish faith had "nothing to do with race and everything to do with religion".
"Ethnicity is irrelevant to Jewish identity, according to Jewish law," said Sacks. "I have advised the leadership of JFS, the United Synagogue and the Board of Deputies on behalf of our community that they have my full personal support and encouragement to use the necessary avenues available to them to maintain our historic rights to be true to our faith and a blessing to others regardless of their faith."
The United Synagogue, which provides religious guidance to JFS, warned the ruling would have a "very serious effect on all Jewish schools". JFS said it was "very disappointed" with the court's decision, claiming it would "seriously undermine the Jewish ethos of the school". It confirmed it would seek leave to appeal.
Jewish school entry policies are unlawful, court rules
Simon Rocker • The Jewish Chronicle
Many Jewish schools in the UK will be forced to tear up their entry rules after the admissions policy of the largest school, JFS, was today ruled racially discriminatory.
In a landmark judgment, the Court of Appeal said that it was illegal for Jewish schools to admit pupils on the basis of whether their mother was Jewish or not.
In a unanimous decision, Lords Justice Sedley, Rimer and Lady Justice Smith concluded: “The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act 1976.”
The appeal was brought on behalf of M, who was refused a place at JFS in 2007 because his mother was a Progressive convert, making him non-Jewish according to the Office of the Chief Rabbi, the school’s religious authority.
Last summer a High Court judge took the view that the school’s policy was based on religious, not racial, grounds and therefore lawful.
But the Court of Appeal ruled that using matrilineal descent as a criterion for entry was based on race.
JFS governors said they now intended to appeal against the decision to the House of Lords.
A spokesman for the United Synagogue, which has already spent £150,000 on legal fees, said: "Unless the Court of Appeal decision is overturned on appeal it will have a very serious effect on all Jewish schools and on many of our communal organisations."
The Board of Deputies said it was "deeply concerned" at the potential effects of the court's ruling, though adding that this was "not expected to impact on September 2009 admissions".
John Halford, of Bindmans solicitors which represented M's case, said; “We welcome the strong statement of the Court of Appeal that the fundamental right to equality before the law regardless of race applies to the admissions criteria of a faith school.
“We have never sought to interfere with the right of Orthodox Jews to define for their own religious purposes whom they do or do not recognise as Jewish.
“However, it is unlawful for a child’s ethnic origins to be used as a criterion for entry to a school. Such a practice is even more unacceptable in the case of a comprehensive school funded by the taxpayer.”
He added that the JFS should do “what the law demands” and admit M immediately to the school. The school should also draw up “inclusive admissions criteria that are fair to all who want their children to have a Jewish education.
“We would be more than happy to insist them in that endeavour, free of charge.”
But the Chief Rabbi Sir Jonathan Sacks pledged his support for a legal challenge to the court's ruling. In a statement, he said: "The principles underlying membership of the Jewish faith have been maintained consistently throughout Judaism's long history, as has our duty to educate our children in the principles and practice of the faith itself.
"These principles have nothing to do with race and everything to do with religion. Ethnicity is irrelevant to Jewish identity, according to Jewish Law. Education has been the crucible of Judaism throughout the millennia, and the development of Jewish faith schools is one of Anglo Jewry's greatest achievements.
"I have advised the leadership of JFS, the United Synagogue and the Board of Deputies on behalf of our community that they have my full personal support and encouragement to use the necessary avenues available to them to maintain our historic rights to be true to our faith and a blessing to others regardless of their faith."
If the Court of Appeal’s decision stands, it could have widespread implications for other Jewish schools.
It would mean that they would have to introduce faith-based tests – such as synagogue attendance, for example – similar to Catholic schools to determine entry.
It would also mean that the children of Progressive converts who were denied a place this year could re-apply or else sue the school for damages.
The court's decision was welcomed by the chief executive of Liberal Judaism, Rabbi Danny Rich. "The JFS, a state comprehensive funded by taxpayers, has been exclusively following one Jewish religious authority and ignoring the rest," he said.
"The Court of Appeal’s ruling means that the JFS will now be open to children from all types of Jewish background, and this is something we truly applaud.”
But Dayan Yisroel Lichtenstein, head of the Federation of Synagogues' Beth Din, said it was "deplorable" that the court had "crossed a red line and strayed into religious issues that they shouldn't have. They have arrogated themselves the right to decide who is a Jew."
I believe this will come down to the issue of government funding. Schools that take government money will not be allowed to enforce matrilineal descent. Schools that do not take government money will be able to do as they please.