London – Supreme court finds admissions policy at JFS discriminates on the grounds of ethnicity.
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One of Britain’s most successful faith schools lost its appeal today to overturn a ruling that it had racially discriminated against a 12-year-old boy.
In a landmark legal decision, judges at the supreme court found the admissions policy of the Jewish Free School in Brent, north-west London, broke the law and the school “directly discriminated” against the boy, known as M.
JFS had denied the boy, who is a practising Jew, a place because the school had twice as many applicants as places, and prioritised children whose mothers were recognised as Jewish by the chief rabbi. Only children with Jewish mothers are recognised by the chief rabbi as Jewish.
M’s mother’s conversion to Judaism, supervised by religious authorities in Israel, was considered invalid by the chief rabbi because it was not done under Orthodox auspices.
But earlier this year, the court of appeal ruled that the school’s policy amounted to racial discrimination because it prioritised applications from children with Jewish mothers. The school appealed against this and took the case to the supreme court.
The case has pitted religious leaders against one another and forced schools to introduce religious practice tests to ensure they aren’t discriminating on racial grounds. Jewish schools will now not be able to set entrance criteria based on matrilineal Jewish descent. Critics say secular jurists are deciding who is Jewish and who is not.
At the supreme court, judges ruled by a majority of five to four that the school had “directly discrimintated against M on grounds of his ethnic origins” and was in breach of the Race Relations Act.
Reading out the judgment, Lord Phillips, president of the supreme court, said: “The Supreme Court has dismissed the appeal by The Governing Body of JFS. On the direct discrimination issue, the decision was by a majority of five (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke) to four (Lord Hope, Lord Rodger, Lord Walker and Lord Brown).
“The majority held that JFS had directly discriminated against M on grounds of his ethnic origins. Lords Hope and Walker, in the minority, would have dismissed the appeal on the ground that JFS had indirectly discriminated against M as it had failed to demonstrate that its policy was proportionate. Lords Rodger and Brown would have allowed JFS’s appeal in its entirety.”
Trevor Phillips, Chair of the Equality and Human Rights Commission said: “This is an important verdict. Whilst not seeking to interfere with the Jewish community’s right to promote its religious ethos, the commission believed that it had to intervene in order to preserve the same protection against racial discrimination for Jews as for anyone else – not least at a time when anti-Semitic groups are active across Europe. The decision of the court achieves that end; and it confirms that no school will be allowed to discriminate based on the ethnic origin of an individual.”
JFS governors said they were “disappointed” and must work towards finding a workable solution for a Jewish practice test to be used for admissions in 2011.
Chairman of governors Russell Kett said “Of those who ruled against the school, Lord Philips, President of the Supreme Court, suggested that there may be a defect in the law by not allowing the school to give admission priority, when oversubscribed, to those who are Jewish in orthodox law, and all stressed that neither the school nor the Chief Rabbi had acted in any morally wrong way or in any racist way in the commonly held sense. The unlawful discrimination relates to ethnicity and not race as such.
“JFS felt it had no alternative than to continue to press for its test of ‘Jewishness’ to be based solely on orthodox Jewish religious law, rather than on a series of factors which themselves have no relevance under Jewish law but which seem to support the notion of a test of Jewish practice required by English legal system,.”
United Synagogue President Dr. Simon Hochhauser said the organisation was “extremely disappointed”, adding: “Practice tests are anathema to the United Synagogue, which for centuries has opened its institutions to all Jews, observant or not.
“These practice tests have no relevance under Jewish law and serve only to support the notion of a test of religion in the eyes of the English legal system. As Lord Brown noted, essentially we must now apply a ‘non-Jewish definition of who is Jewish’.”
Chief Rabbi Lord Sacks said: “The closeness of the Court’s judgement indicates how complex this case was, both in English law and debated issues of Jewish identity. I welcome the judges’ vindication of the good faith in which the United Synagogue, the London Beth Din and our office have acted.
“I likewise welcome the suggestion of the President of the Supreme Court that the issue at stake in this case may merit legislative remedy.
“However, these matters require careful reflection and consultation, and instant reactions would be inappropriate. Our office will be working closely with the schools, the United Synagogue, the Board of Deputies and other interested parties to consider the implications of the verdict before making a full response.”
A statement from the Board of Deputies said: “We are extremely disappointed by this decision, which was reached by the narrowest possible margin.
“The sheer breadth of the Race Relations Act 1976 meant that JFS’s admissions criteria, based on millennia of Jewish practice, fell foul of the civil law despite the “unimpeachable motives” and the “sincerely and conscientiously held beliefs” of the school and of the OCR.
“We will be exploring, as a matter of urgency and after consultation across the community, the possibility of a legislative change to restore the right of Jewish schools of all denominations to determine for themselves who qualifies for admission on the basis of their Jewish status, which we consider to be a fundamental right for our community and one with which the members of the Supreme Court had great sympathy.
Both the British Humanist Association (BHA) and the Equality and Human Rights Commission welcomed the ruling.
The Accord Coalition, which campaigns for inclusive education, has also welcomed the decision.
Accord Chair, Rabbi Dr Jonathan Romain, said: “It is a victory of common-sense over discrimination. It was always indefensible that a Jewish school refused Jewish education to a Jewish child. The ruling will serve as a wake-up call to all state-funded faith schools to be as inclusive as possible”
if it is so important for M to go to yeshiva, why doesnt he and his mother do it the right way and just convert properly?
I think this is an important and interesting decision. The judgement seems go to great lengths to make clear that the judges were simply acting to interpret the existing law as its stands and goes out of its way to relieve any sense the school and the chief rabbi acted any way that in fact was racist.
At the same time, the process sends a powerful message to the London Beth Din — which, for the first time, will have to introduce some level of transparency and accountability to its conversion process and will have a much harder time making life-destroying decisions on an arbitrary and capricious basis.
Ultimately, I suspect the law will be changed. Matrilineal descent will get a carve out of some kind — but the government will also want to ensure that in that process, individual rights are protected, decisions are appealable within a well-understood process and that where taxpayer dollars are being utilised, the state has an heightened interest in creating an appropriate structure for equitable access where places are limited.
This is why Jewish schools shouldn’t be the type that attracts goim, ie we should speak yiddish in class, if the school is just a “jewish” public school we will have problems.
Yiddish in the school would solve all problems
the verdict seems to be saying that as long as the child is a jew the school is obligated to admit him even if he’s not jewish under orthodox jewish law . so how about if the child isn’t jewish at all with no conversion at all would the school be allowed to refuse him entry then ? why isn’t this by itself racial discrimination ?
Its the Hellenists at work again people. They just call themselves Dr ‘Rabbis’.
This is what happens when religious schools take government money. Those pushing for government funding of Jewish schools in the U.S. beware.
I think this is only an issue if one wants government funding, if I remember correctly
curious in the case of a muslim school. would the ruling be the same? let’s see some religious christain trying to enroll.
I hope the board closes the school down rather than publicly accept a goy
This is a modern orthodox AFFILIATED school, most of the children DO NOT come from Shomer Shabbos (halachic) homes and eat out treif even if they have some semblence of kashrus at home though they may be very traditional. Speaking yiddish in the schools won’t help because ORTHODOX people in London DO NOT send to JFS. M’s family is NOT frum, they want a basic Jewish education at a non pushy school (yiddishkeit-wise), but communal occurances, (births, deaths, marriages) tend to be under Orthodox control, as was the decision making process at JFS. It;s very unfortunate that it has come to this, and I doubt if the other parents at JFS will see the message in all of this – since they value their yiddishkeit so very little, so to the British government now gets to decide who is a Jew. And I know, I grew up among them.
A revolutionary idea – speak Hebrew not Yiddish – Hebrew is lashon hakodesh
>>>>>>>>The school can say “you don’t keep Shabbat, therefore, we’re not letting you in.”
But the school can’t say “you haven’t been converted halachically, so we’re not letting you in” either.
Start Teaching In yiddish At A Young Age They Will Pick It Up, You Can Also Have Classes That Teach English So They Will Be Able To Deal With The World. . There Is No Problem With This, If We Mix With GoIm They Will Want To Join Us.
If the school takes gocernment money, then government has a say in the school policies. It it does not, the government can drop dead, it is not their business.
The Court’s verdict clearly shows its efforts were directed to an application of English Lawas it presently stands. The majority ‘s opinion may be an unintend result of how the the law presently reads and therefore needs amending. Possibily allowing the offical bodies of a faith to determine the definition of who is member of a particular faith community.
There are a number of commenters here who are getting the issue wrong:
The ruling is one of racial discrimination. That means that government funding is irrelevant. That is, ANY Jewish school is subject to this ruling (publicly and nonpublicly), since schools that don’t take government funding aren’t allowed to discriminate based on race, either. The court is treating this like JFS has said “you can’t come here because you’re black,” since the determination is made on descent, not on belief (at least in theory).
Millhouse at #27 understands the point. We Jews are a nation just like any other except that we are in exile. That nationality passes through parentage or naturalization (conversion).
The Race Relations Act prohibits discrimination on the grounds of nationality. One can no more require children to be Jews than one can require children to be Irish or Spanish nationals (although you can require that they speak the Irish or Spanish language). As someones parentage is the most common factor in deciding nationality it is prohibited to make it a requirement of entrance to the school.
it is time to leave England to thje Muslims and go elsewhere where jews are welcomed. Or, at the minimum, all should apply to a Muslim school and then see what happens.
Lets have a Bes Din decide who is British. Here ar some requirements; Servile obeisance and deference to Moslems; antipathy in not loathing of Jews and Israel; a hasbeen as a country; football hooligan generator; and a failure of its youth at sports so they have to import foreigners, even the hated Israelis.
It cannot happen in the USA as long as private schools remain private. However, if private schools (like yeshivas) come to accept public funds, as many of the readers of this blog (like Milhouse Nixon) desire, it most assuredly will happen here.
Although ethnic discrimination by private schools is not expressly prohibited by US Federal law (unlike in the UK), such discrimination prevents a school benefiting from tax exempt status as a charity because although not illegal is against public policy.
From what I heard, I think that the school is subsidized by the English government; that’s where the problem lies. They feel they can have a say in it. This a very dangerous precedent because once the government mixes in religion – it can lead to anything.
I bet if the child’s mother paid full tuition they would have not had an issue.Sad but true!
Everyone here seems to forget, England HAS a state religion. The Church of England is the national religion, and the Queen is its head. The English government has a long history in calling the shots as to what religions can and cannot do. If you are not happy with it, cut the ties to the state. “He who pays the piper calls the tune.”
The British Government does not allow non british citizens to vote in their elections. that is discrimination. I say we sue.
What is it with us Jews who keep calling non Jews goys. I hate the word goy or goyim. It smacks of hating people that are not Jewish. I also hate the word schiksa. I say get rid of all faith schools, most of these schools preach discrimination of other faiths, what is the problem with mixing with other faiths, is it because we are so worried about assimilation. If most of you are, there is an answer to that, go live in Israel, that way you would’nt be frightend by your children mixing with other kids from other faiths. Live and let live we are all the same, black, white, Jew, muslim or christian. WE ARE ALL HUMAN BEINGS.
In Holland, Belgium, France and no doubt other countries too, similar cases occur from time to time. To my knowledge, no local Court ever ruled against the schools. One could derive from that that the anti-discrimination laws in those countries are better worded and/or more intelligently interpreted. Alternatively, respect for religious rules and the freedom to exercise one’s religion appear to have reached a higher standard, more commensurate with the rule of law in a grown up democracy. So be it. I feel sorry for M and the likes of M who will attempt to enter a Jewish school. They will be branded as not entirely up to scratch – the parents can already book a season ticket at the High Court. Suggestion: JFS could announce to close the school and inform the local authorities that some 1,000 pupils need to enter one specific Catholic school right after the end-of-year holidays. JFS could also decide to create a special class for non-halachic children. Neither will happen as it means rocking the boat and British Jews aren’t very good at that. Maybe there lies the real problem………………..