Ethos and ethnicity

On 25 June, the Court of Appeal overturned a decision by Munby J on what it means to be Jewish in R (E) v Governing Body of JFS & Others [2009] EWCA 626. In a short judgment, it decided that it is direct race discrimination to refuse a child admission to a school because his mother is not regarded as Jewish.

JFS is a maintained Jewish school in Brent. Its culture and ethos are Orthodox Jewish. Its admissions policy gives priority to children whom the Office of the Chief Rabbi (OCR) recognises as Jewish. One can either be Jewish by descent, through the matrilineal line, or by conversion.

The school rejected E because the OCR did not recognise his mother's conversion: she converted in a Progressive synagogue, not an Orthodox one. E argued unsuccessfully in the High Court that being Jewish means membership of an ethnic group. JFS excluded E because it regarded his mother as non-Jewish. That was discrimination on the ground of her ethnicity, and hence unlawful. The Court of Appeal agreed. This has caused some controversy, but surely it is right to find that no faith school is immune from the law on race discrimination? It is no surprise that religion is rarely allowed to trump other core values, such as equality and dignity.

Suspicion

Historically, English judges have been somewhat suspicious of organised religion. In 1887, Lord Justice Lindley said: 'Of all influences religious influence is the most dangerous and the most powerful' (Allcard v Skinner). In cases like Axon (2006) and X v Y School (2007), the High Court rejected a Catholic parent's wish to be informed of her child's wish for an abortion, and a girl's desire to wear a full-face veil. This judicial lack of deference seems pretty entrenched: see Williamson (2005), where the Lords rejected corporal punishment in the name of religion.

Indeed, a row is brewing over the government's recent consultation document which proposes to allow parents to retain the right to withdraw their children from sex and relationships education (SRE), and to allow faith schools to deliver SRE 'in line with the context, values and ethos of the school'. Ethos is the buzz word: when the Republic of Ireland lobbied for last-minute changes to the Equal Treatment Framework Directive in 2000, under pressure from the Catholic Church, it insisted that Art.4.2 be amended to permit differences of treatment 'within churches and other public or private organisations the ethos of which is based on religion or belief' (for more background, see 'Rules of conduct', Solicitors Journal, 147/30, 1 August 2003).

E lost his case in the High Court because Munby J decided that JFS had not discriminated 'directly' against him, on racial grounds. JFS had rejected him on religious criteria, not racial ones. Munby J also agreed that this was not a case of 'indirect' racial discrimination. Though faith schools tend to discriminate on racial grounds, in the sense that their faith preference would probably favour members of one particular racial, national or ethnic group over others, this could be justified because it pursued a 'legitimate aim' and was 'proportionate'. The Court of Appeal said that Munby J 'allowed himself to be distracted by wider considerations than the law warrants'. This criticism has force: we would not allow Catholic schools to give priority to pupils from Poland, Ireland and Italy (predominantly Catholic countries).

Equal treatment

The court cited two key House of Lords decisions on equal treatment: Mandla v Dowell-Lee [1983] 2 AC 548, and James v Eastleigh Borough Council [1990] 2 AC 751. Mandla concerned a Sikh boy whose turban offended a school's dress code. Lord Fraser defined 'ethnic' in fairly wide terms, not just strict biological or racial ones. An ethnic group means a group with a long shared history; a cultural tradition; a common geographical origin or descent from a small number of common ancestors; a common language/literature/ religion; and which is a minority, or an oppressed or dominant group within a larger community. By these criteria, Jews are an ethnic group.

James was a 61-year-old whose local authority gave free swimming sessions to pensioners. As a man, he was ineligible until age 65, whereas women were eligible from age 60. The Lords decided this was direct sex discrimination, because the council's criterion was itself discriminatory on grounds of sex.

The OCR is free to define what being Jewish means as a matter of religious law (just as the Catholic Church can decide who is a Catholic). JFS' problem lay in using this definition to determine eligibility for a state education, when the OCR's definition, when read in terms of the secular law, also means membership of an ethnic group. The secular law is wider and cannot be subsumed within the meaning ascribed for religious purposes by a particular faith community. And since the UK is accustomed to a clear division between religious and secular authority, the Court of Appeal's ruling makes sense.

How will this latest ruling affect faith schools? The Court of Appeal briskly dismissed suggestions that its decision would cause problems, saying that from now on schools simply have to ensure that their admissions criteria are structured around 'faith, however defined, and not on ethnicity' (para.33). JFS could refine its admissions criteria to require that entrants practise Orthodox Judaism. Care needs to be taken to ensure that putative faith criteria do not constitute a disguised form of ethnic selection. And the battle between tradition and modernism is likely to rumble on, with flashpoints over such sensitive matters as sex education in state-funded schools.