Supreme issues
The Supreme Court yesterday (27 October) assembled the country’s leading judges to decide whether to uphold a Court of Appeal decision that found that a Jewish school contravenes UK race discrimination laws and should therefore revise its admissions policy.
Such is the controversy of the case that the President of the Supreme Court, Lord Phillips of Worth Matravers, will chair a panel of nine Justices of the Supreme Court, who will determine its outcome. The list includes Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond.
At stake is the basis on which a significant number of faith schools admit pupils. In July, the Court of Appeal ruled that the Brent-based school, JFS, must radically change its admission policy because it breached race discrimination laws.
The case was brought by the family of a 12-year-old boy who had been refused entry to the school because his mother’s non-orthodox conversion to Judaism was not recognised by the Office of the Chief Rabbi.
Traditionally the school admitted pupils who were defined as Jewish by Orthodox Jewish law. Essentially only the children of Jewish mothers could be admitted.
Acting on behalf of JFS’s governing body and admissions panel, 11KBW’s Peter Oldham argued that the entry policy complied with Jewish law and therefore was an issue of religion: under the law, religious schools can give priority to pupils on religious grounds.
But appeal judges Lord Justice Sedley, Lady Justice Smith and Lord Justice Rimer disagreed and 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 judges added: “No faith school is immune from the prohibition on race discrimination.”
The judgment caused an outcry, with Chief Rabbi Jonathan Sacks saying it effectively branded Judaism as racist.
Rabbi Yitzchak Schochet of the Rabbinial Council of the United Synagogue said it went too far in attempting to define what it means to be an orthodox Jew. It is not for a court to decide, he argued.
Matrix Chambers’ Tom Lindon QC has been instructed by the Treasury Solicitor to represent the Secretary of State for Education, which is concerned that the Court of Appeal’s decision “may have wide ramifications for schools which give preference to members of certain faiths over others”.
It too is calling for the Supreme Court to reverse the appellate court ruling.
If the Supreme Court upholds the judgment, however, Jewish community leaders are considering proposing an amendment to the Equality Bill, which is currently finding its way, very slowly, through Parliament.
Increasingly the courts are being called upon to decide what is meant by discrimination. Employment lawyers believe this will only spiral further when the Equality Bill reaches fruition.
Race discrimination is a highly sensitive area of law, particularly when it comes to religion. The decision to appoint nine Justices of the Supreme Court to hear the JFS case shows just how serious the outcome could be.
For a full list of counsel on the case click here.
Readers' comments (3)
Anonymous | 4-Nov-2009 9:49 am
I am a Jewish lawyer with one child at a Jewish school and another due to join next year. I cannot overstate what chaos and upset the Court of Appeal decision has brought to this year's admission. It only emphasises that law and religion do not mix. Unless the Supreme Court overturn the decision there will be a slew of follow on disputes from all corners over the strange new admissions criteria that have been rushed into action.
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Anonymous | 5-Nov-2009 1:32 pm
Well, Anonymous, I am also a Jewish lawyer whose children were refused admission to Jewish school although we are an observant family, because their grandmother was not of Jewish descent. Meanwhile, the school has accepted children from atheist families whose mothers happened to be born Jewish. I am sorry that you feel that the Court of Appeal caused chaos and upset. Those families who have suffered for many years from the unfair and discriminatory policies of JFS would strongly disagree: the chaos and upset long pre-dated the Court of Appeal. They just did not affect you.
The tragedy is that the community brought this case on itself, because of the intolerance of the orthodox authorities.
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Anonymous | 8-Nov-2009 10:49 am
As a Jewish future lawyer, I see a couple of problems.
Firstly, JFS is effectively a secular school for Jewish pupils. You don't get cases like this about Hasmo because no non-orthodox people would send their children there.
Secondly, everyone - possibly including the barristers and judges - has so far failed to realise that the mother's status is not actually relevant. If the mother is non-Jewish, it means the child needs to convert. Especially for young children, it takes a lot less time for a child to convert than an adult. The question isn't whether the mother's Jewish - it's whether the child is.
Thirdly, it's not about intolerance. Either you're Jewish or you're not. If not, can you really claim it's "intolerant" to say so? As I mentioned above, although Orthodox conversion is arduous, it is a way of curing the problem. Essentially what this comes down to is that some people who everyone agrees fail the Halachic test of Jewishness can't be bothered to cure that in the approved manner.
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