Jewish school's admissions policy discriminates on race grounds

A Jewish school's admissions policy requiring applicants to have a Jewish mother has been ruled unlawful on racial grounds.

'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,' Lord Justice Sedley said in E v Governing Body of JFS [2009] EWCA Civ 626.

The school had rejected a pupil, M, because it did not recognise his mother, a convert with a Progressive synagogue, as Jewish under rules defined by the Office of the Chief Rabbi.

About 40 Jewish schools have been using similar criteria and other faith-based schools where religion may be defined by reference to race could also be caught by the ruling.

'Where a faith-based school is looking to give preference to a particular religion, the governors should ask themselves if followers of that faith could also be regarded as belonging to an ethnic group, as this could fall within the prohibition on race discrimination in the Race Relations Act,' commented Yvonne Spencer, a partner in the education team at Veale Wasbrough.

In doubt, Spencer said, schools should consider the set of characteristics defining an ethnic group laid down by Lord Fraser in Mandla v Dowell-Lee [1983] 2 AC 548, a case involving a Sikh school's uniform policy.

John Halford, partner at Bindmans, who acted for M's father, minimised the effect of the ruling, saying only Jewish and Sikh schools would be affected as the only two groups where religion overlapped with a racial group for the purposes of the Act.

'It would be possible to envisage other cases where faith overlaps with ethnic or national origins,' he told Solicitors Journal.

'A Catholic school, for instance, may have a practice-of-faith criterion, but this could not be defined by reference to nationalities with traditionally strong Catholic beliefs, such as Poles or Italians,' he said.

Halford added that in practice, such situations would in any event be improbable because Catholicism - and most other religions - is not defined by reference to ethnicity.

Halford added that faith-based tests remained lawful, and that those could include regular worshipping at the local synagogue, or running a home according to kosher principles.

'Other faith schools have criteria based on faith rather than ethnicity so there is no reason why this school should not be able to come up with its own criteria that recognise faith without reference to ethnicity,' he said.

Michael Brotherton, associate at Stone King Sewell who represented JFS governors, said the school believed it had set its admissions policy in compliance with the law, a position that had been upheld by the schools adjudicator.

'The oversubscription criteria of the admissions policy is clearly set out by reference to a religious criterion '“ how a Jew is identified as a Jew according to Jewish law; it's not about ethnicity,' he said.

'But the court disagreed and said that question of Jewish identity in the context of this case had to be dealt with in terms of secular law rather than religious law.'

The OCR is now considering what guidance it could give to schools in relation to admission criteria based on religious practice rather than Jewish status.

'The religious authorities for those Jewish schools for whom the OCR is not the religious authority will have to undertake a similar exercise,' said Brotherton.

Both the school and the OCR have indicated they would seek leave to appeal.

Yvonne Spencer said this was to be expected. 'The issue of mother conversion is a crucial one for orthodox Jews', she said.

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