Jewish school loses admissions policy challenge

One of the oldest Jewish schools in England has lost its appeal against a Court of Appeal ruling that its admissions policy breached race discrimination laws.

JFS, a popular school in north London, is over-subscribed and gives precedence to applicants regarded as Jewish by the Office of the Chief Rabbi.

Challenged by a parent whose son, M, was refused admission that the policy discriminated on grounds of race, the school had argued that the criterion was based on religion.

At present, OCR rules provide that an individual will be regarded as Jewish either through matrilineal descent; that is, if born from a Jewish mother, or if the mother has converted to Judaism with an Orthodox synagogue.

But a panel of nine justices of the Supreme Court held this morning by a 5:4 majority that the school's policy amounted to direct race discrimination under the 1976 Race Relations Act.

Giving the court's judgment, Lord Phillips, with whom Lady Hale and Lords Mance, Kerr and Clarke agreed, said that reliance on the OCR rules to determine a child's Jewishness implied a reference to ethnic origin prohibited under the Act.

Lords Hope and Walker, in the minority, considered that the school indirectly discriminated on grounds of race and that it had not showed the policy was proportionate.

Lady Hale, though in the majority, further commented that, had the case for indirect discrimination been made, the school would also have failed to show that the use of a criterion based on ethnicity was a proportionate means of attaining the legitimate aim in Jewish education law to educate those regarded by the OCR as Jewish.

Lords Rodger and Brown would have allowed the school's appeal, having found the policy was a rational and proportionate way of giving precedence to children regarded as Jewish.

But the justices also grappled with the religious element underlying the criterion. 'The terminus for OCR was a decision on a matter of religion but the route to that terminus was one of ethnic origin,' noted Lord Kerr.

According to Lord Hope, 'the part that conversion plays in this process is crucial to a proper understanding of its true nature. It cannot be disregarded, as Lady Hale suggests, as making no difference. It shows that the inquiry is about a religious event to be decided according to religious law.'

Lord Clarke added that the question was not a narrow one of whether it was either race or religious discrimination. 'The question is not whether the guidance was given on religious grounds but whether the admitted discrimination was on ethnic grounds,' he said.

'In my opinion the answer is that the discrimination was on both religious and ethnic grounds because the criteria were arrived at on religious grounds but, since those religious grounds involved discrimination on ethnic grounds, it follows that the admissions policy of JFS was contrary to [the Act] because it discriminated against M and others on racial grounds,' Lord Clarke said.

While the ruling spells the end of admissions policy based on OCR criteria, it also acknowledges the wider issues it raises.

Lord Phillips wondered whether the new test applied by JFS since the Court of Appeal ruling in the case, which is based on religious practice, would in fact lead to indirect discrimination in favour of those who are Jewish by matrilineal descent.

Lady Hale also suggested that specific provision should be made to allow Jewish schools to apply this criterion.

'Some may feel that discrimination law should modify its rigid adherence to formal symmetry and recognise a greater range of justified departures than it does at present,' she said.

'There may or may not be a good case for allowing Jewish schools to adopt criteria which they believe to be required by religious law even if these are ethnically based. ['¦] The Jewish law has enabled the Jewish people and the Jewish religion to survive throughout centuries of discrimination and persecution. The world would undoubtedly be a poorer place if they had not. Perhaps they should be allowed to continue to follow that law.'

But, she said, 'if such allowance is to be made, it should be made by Parliament and not by the courts' departing from the long-established principles of the anti-discrimination legislation. The vehicle exists in the Equality Bill.'