THE requirement of a Jewish voluntary aided school that if a pupil was to qualify for admission his mother must be Jewish, whether by descent or conversion, was a test of ethnicity that contravened the Race Relations Act, the Court of Appeal ruled last week.
The child, who was identified as M, has a father who is Jewish by birth and a mother who is Jewish by conversion. M would like to be admitted to JFS (formerly the Jews’ Free School) in the London borough of Brent.
As long as a faith maintained school is undersubscribed, it cannot use religious criteria to allocate places. But once it is oversubscribed, it can lawfully restrict entry to children whom, or whose parents, it regards as sharing the school’s faith.
JFS is oversubscribed, and is therefore entitled to select pupils according to its admissions policy, which at present is to give priority to children who are recognised as Jewish by the Office of the Chief Rabbi (OCR) or are following a course of conversion approved by the OCR.
The OCR did not recognise the validity of M’s mother’s conversion to Judaism, because it was conducted in a Progressive and not an Orthodox synagogue. Since a child is regarded by the OCR (and others) as Jewish only if his or her mother is Jewish, M was refused admission to JFS.
M’s father, known as E, brought judicial review proceedings on M’s behalf against the school governors, the school’s appeals panel, and the Schools Adjudicator. It was argued for M that being a Jew was a question of ethnicity, so that to refuse a child admission because his mother was not Jewish constituted racial discrimination; that the discrimination had no legitimate aim; and that the religious motive for such discrimination made it no less unlawful.
The JFS, the Secretary of State for Children, Schools and Families, as an interested party, and the United Synagogue as an intervener contested E’s claims. They said that the criterion itself was purely religious, not racial. Mr Justice Munby rejected the father’s claim, but the Court of Appeal reversed that decision and gave judgment for the father.
The Court of Appeal said that faith schools were exempted from the prohibition of religious discrimination because their purpose was to educate children in the religious beliefs of their parents. No school, however, was permitted to discriminate in its admissions policy on racial grounds.
The OCR considered that there were two essential ways in which a person might be, or become, a Jew. One was descent from parents, the other was by conversion in accordance with the tenets of Orthodox Judaism.
The court said that it was not concerned with the beliefs that underpinned those categories; nor was it concerned with the non-recognition by the school of M’s mother’s conversion. The question was whether the refusal to admit M was being done on racial grounds. Lord Pannick QC argued for the United Synagogue that the Chief Rabbi wished only to apply the law of the Torah, and only those whom the Torah did not recognise as Jews were excluded.
The Court of Appeal accepted the theological origin of the OCR’s definition of Jewishness. But if a school was entitled to limit its intake to Jewish children, it ought in principle to be able to adopt its own working definition of what made a child Jewish, so long as it did not use a racial criterion.
It was there, the court said, that the arguments for the JFS faced a problem. None of the parties wanted a case that would make discrimination against Jews not being discrimination on racial grounds.
Lord Pannick insisted that not only were Jews an ethnic or racial group, but that for all purposes except those of the OCR and the JFS, M was a Jew. That was not an easy position to maintain, the court said, but its corollary was that what excluded M was a matter of pure theology.
The “but for” theory offered a straightforward litmus test of discrimination: but for his and his mother’s not being regarded as Jewish, M would have been admitted to the school. The key question was why M received less favourable treatment. To that, there was only one answer possible, the Court of Appeal said: M was refused admission because his mother, and therefore he, was not regarded as Jewish.
If it were otherwise, the court said, a person who believed, as did the Dutch Reformed Church of South Africa until recently, that God made black people inferior to whites, would be able to discriminate openly without breaking the law. The reason why that was not so was that the grounds for any such discrimination would be that the victim was black. The refusal to admit M because he was not regarded as matrilineally Jewish constituted discrimination on racial grounds.
If, for theological reasons, the court said, a fully subscribed Christian faith school refused to admit a child on the ground that, albeit practising Christians, the child’s family were of Jewish origins, it was hard to see what answer there could be to a claim for race discrimination.
By expressly adopting the Chief Rabbi’s criteria in its admissions policy, the school made them part of its policy. Since those criteria discriminated on racial grounds, the school was answerable, the court said.