Bindmans and Blackstone win Supreme Court victory in Jewish school case
The Supreme Court has upheld a Court of Appeal ruling that it was illegal for a Jewish school to refuse entry to a boy because his mother was not recognised as Jewish by the Office of the Chief Rabbi.
Dinah Rose QC
Blackstone Chambers’ Dinah Rose QC was instructed by Bindmans partner John Halford to represent E, the father of a 12-year-old boy known as M, in his attempt to have his son admitted to the Brent-based JFS school.
The school had an oversubscription policy that gave priority to children it deemed Jewish by birth. The boy was refused entry because his mother had converted to Judaism rather than being born into the faith.
Rose argued that the policy contravened the Race Relations Act.
In June, a Court of Appeal panel of three chaired by Lord Justice Sedley ruled: “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.”
The Supreme Court gathered nine Supreme Court Justices to hear the case. The case centred on whether the oversubscription criterion constituted direct discrimination on grounds of M’s ethnic origin or indirect discrimination which was not proportionate and so not objectively justified.
The court was split on the matter five to four.
Supreme Court president Lord Phillips and Supreme Court Justices Lady Hale, Lord Mance, Lord Kerr and Lord Clarke found that the school directly discriminated on racial grounds against child M and others like him.
Lord Phillips said: “The majority of the court has concluded that the JFS admission policy does discriminate on the grounds of ethnic origin and is, in consequence, unlawful.”
Nevertheless, it was stressed that the school was not acting in a racist manner. Lady Hale SCJ highlighted: “No one in this case is accusing JFS (as the Jews’ Free School is now named) or the Office of the Chief Rabbi of discrimination on grounds of race as such.
“Any suggestion or implication that they are “racist” in the popular sense of that term can be dismissed.”
Lords Hope, Rodger, Walker and Brown were dissenting with Lord Rodger and Brown stating that they would have allowed the appeal by JFS in its entirety.
Stone King Sewell partner Richard Gold instructed Blackstone Chambers’ David Pannick QC for the appellant, JFS. Blackstone’s Ben Jaffey was instructed by Farrer & Co partner Anne-Marie Piper to act for the co appellant, the United Synagogue.
In the Court of Appeal Pannick had represented the United Synagogue with 11KBW’s Peter Oldham representing the governing body of JFS.
One Essex Court’s David Wolfson QC was instructed by Teacher Stern Selby to act for the Board of Deputies of British Jews as an intervener. Also appearing as interveners were: Cloisters’ Robin Allen QC instructed by the Equality and Human Rights Commission; Matrix Chambers’ David Wolfe instructed by Leigh Day & Co partner Richard Stein for the British Humanist Association; and Thomas Linden QC also of Matrix Chambers was instructed to act by the Treasury Solicitors for the secretary of state for children, families and schools.
Readers' comments (11)
Anonymous | 17-Dec-2009 2:36 pm
What astonishes me is that this ever made it that far. Had the position been reversed: "I'm sorry, your son can't come to our school because his mother IS [insert religion/ethnicity here]" there would, quite rightly, have been street riots and at least 1 hastily fired admissions offier.
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Anonymous | 17-Dec-2009 4:14 pm
"Jewish by birth"....what a riduculous notion! While children may be born into a religion, they are not born with religion....when they enter this world, they do so as perfect little atheists.
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Anonymous | 17-Dec-2009 4:28 pm
Hang on, anonymous! My grandson whose mother is Jewish wasn't accepted by his local Church School for that reason. I don't remember any riots or dismissals or, indeed, court cases
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Anonymous | 18-Dec-2009 5:50 am
his school should take any kid as well all pay tax and it's that tax that payes for the school
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Anonymous | 18-Dec-2009 11:32 am
This case need never have arisen had the Offices of The Chief Rabbi accepted a pluralistic approach in relation to the various denominations in the religion. Any person who knows this school is aware that there are many levels of observance amongst its pupils and their parents and differing backgrounds. By insisting that children, the offspring of non United Synagogue conversions, were excluded meant the school, its governors and the United Synagogue movement were on a slippery slope. It is irrelevant to state that "3,500 years of religious life has been swept away". The issue was neither matrilineal descent or race it was simply a schools statute that discriminated against individuals who were earnest and sincere but did not conform to an arbitrary set of criteria.
I have, as you can guess, no sympathy for the United Synagogue or the Office of The Chief Rabbi. A more robust leadership would never have allowed this scenario to have developed.
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Anonymous | 18-Dec-2009 2:01 pm
Anonymous (4:14, 17 Dec) demonstrates his/her ignorance of Judaism, which has always had an "ethnic" component (to use the language in the case), regardless of the level of religious observance or even belief - the fact is that it is not neccessary to believe in order to be considered Jewish (the Nazis certainly didn't make belief a qualification requirement for its policies). The fact that this does not accord with anonymous' world view or the wording of the Race Relations Act merely shows that the decision and the ideas reflected in the Act are based on a Christian notion of faith, and that is surely inherently discriminatory?
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Anonymous | 18-Dec-2009 2:52 pm
I am of the Jewish faith, I was brought up in a very traditional orthodox manner, even though my mother converted (magired) through Reform Judaism. I was never refused entry to nursery, junior, or secondary school because of my ethnic makeup (and that was back in the late 70's early 80's) and I find it abhorrent in these modern times that this school could uphold such outdated beliefs. Based on the views and beliefs of halachic Judaism I would be considered "non-Jewish" yet I had my Bar Mitzvah at the Western Wall (with full traditional ceremony, tefillin and nothing Reform about it other than the Rabbi and the fact that I am technically Reform). I am proud of my parents and I applaud the boy’s father for pursuing this, although I doubt it will ever change the matrilineal requirement. Although I am no expert on this, I do believe it was once through the father's blood line that a child was considered Jewish, but was changed to the mother, since there was no way of tracing absent father’s ethnicity! When all is said and done, it's bad enough having anti-semitism in the world, without Jewish people fighting amongst themselves in this way, over a school's selection criteria, bringing a wider awareness of the view of Jewish ethnicity by the JFS and United Synagogue into focus. Without knowing the family, at the end of the day is the boy any less Jewish than his other class mates. I think not.
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Anonymous | 18-Dec-2009 3:26 pm
Anon 18 Dec 2009 at 2.01, .....how can it be ethnic....it is religion and culture....if it was ethnic, then where did the first jew come from? For someone to perceive you as Jewish you do not need to believe.....but then, you don't need to believe in Christianity to be perceived as a Christian.
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Anonymous | 18-Dec-2009 5:10 pm
the article is inaccurate and misleading. JFS's entry policy gave priority to kids that were Jewish by the orthodox definition; that could be by birth or via their own or their mother's conversion by an orthodox Jewish legal authority. the current issue arose regarding conversions performed by a non-recognised authority. so the discrimination wasn't against converts per se- rather against converts whose conversions were performed by the wrong guys.
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Anonymous | 18-Dec-2009 6:02 pm
Anon 18 Dec 2009 at 2.01, .....how can it be ethnic....it is religion and culture....if it was ethnic, then where did the first jew come from? For someone to perceive you as Jewish you do not need to believe.....but then, you don't need to believe in Christianity to be perceived as a Christian.
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Freddie_Turnill | 20-Dec-2009 2:46 pm
"his mother had converted to Judaism rather than being born into the faith" You are born into an ethnic/racial group but not born into a faith.
Those who subscribe to Judaism in either it's religious form or it's secular one seem to be able to be able to switch alternately from faith one time then swap over at another and have identity as an ethnic group. (I recall the prosecution of Lady Birdwood in the early 90's under the Race Relations Act which concerned her publications critical of Jewry.)
I find it difficult to comprehend a "faith" school where you have to have the correct ethnicity for both parents except where ethnicity is the key component and faith is deeply associated with that ethnicity.
This is similar to Christianity being historically been deeply rooted among European nationalities since late Roman times.
Though Christianity has become more and more a universalistic belief, as the belief in its European heartlands eroded, (and for many, Christianity "died") a secular identity was retained for the rituals of the rites of passage.
This is the opposite of what has happened to Judaism, where, whilst many Jews became secular, there was no shift to the conversion of outsiders either in an Ethnic or religious sense. If anything the sense of a separate identity has become more intense with the Holocaust providing a rallying point of that shared identity and separateness.
Personally I cannot see how anyone can defend an exclusivity of ethnic identity in schools admissions policy for a "faith" school when the BNP has had to change it's criteria for admission for entitlement to qualification of membership by deleting it's British Ethnic exclusivity clauses as this attracted the Equalities Commission to pursue a court case against them as that clause was considered discriminatory on the grounds of race.
Whether you agree or not with the State being able to dictate the membership of private organisations is one thing, you can be against that in principle, but you can't (or shouldn't be able to) pick and choose as to whether the law applies to you or not by virtue of the one having more power, influence, status or reputation than the other.
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