Jewish leaders are deeply concerned by a ruling from the Court of Appeal last week on school admissions policies. They are right to be concerned — although the judgment has been much misunderstood.For example, Rabbi Yisroel Lichtenstein, dayan (judge) of the rabbinical court of the Federation of Synagogues, is quoted by the Jewish Chronicle as saying that the Court of Appeal judges have "arrogated themselves the right to decide who is a Jew". This is simply not true.
The case was brought by a father, E, who is Jewish by birth. His former wife is of Italian national and ethnic origin. Before she and E married, she was converted to Judaism through an independent Progressive synagogue.
E wants to send his son, M, to JFS. Founded in 1732, JFS is Europe's largest and most successful Jewish secondary school. It is now based in the north-west London suburb of Kenton.
If a faith school is over-subscribed, it can lawfully restrict entry to children whom, or whose parents, it regards as sharing the school's faith. But no school is entitled to discriminate in its admissions policy on racial grounds.
JFS is over-subscribed. Its policy is to give priority to children who are recognised as Jewish by the Office of the Chief Rabbi (OCR).
The OCR does not recognise the validity of M's mother's conversion to Judaism because it was conducted in a Progressive rather than an Orthodox synagogue. Since a child is recognised by the OCR as Jewish only if his or her mother was Jewish, M was refused admission to JFS in 2007.
A brief declaration of interest at this point: E is a member of the New London Synagogue, a Masorti (or conservative) congregation. My wife and I are members of a different Masorti synagogue although I have every reason to believe that our children would be recognised as Jewish by the OCR.
E launched a legal challenge against JFS. It came before Mr Justice Munby last year. The judge found in favour of JFS. Like many of Mr Justice Munby's rulings, the written judgment is elegant, erudite and very long. This one runs to 72 pages and you can read it here.
The judge went out of his way to show his respect for Judaism, which he described as "one of the oldest, greatest and most respected of the world's great religions". He added that Orthodox Judaism was "of the very greatest antiquity and respectability -- it is, after all, the oldest of the three 'religions of the book'".
E appealed to the Court of Appeal. He was represented by Dinah Rose QC. The United Synagogue -- effectively, the OCR -- was represented by Lord Pannick QC. Both counsel, from Blackstone Chambers, were well chosen. Dinah Rose won barrister of the year in the Lawyer awards last week. David Pannick already has every accolade a barrister could want.
As I say, no school may discriminate in its admission policy on racial grounds. Such discrimination is forbidden by the Race Relations Act 1976. That legislation defines racial discrimination as treating someone less favourably on the grounds of their ethnic origins.
Lord Pannick, with the support of JFS and the Education Secretary, argued that the school's selection policy was a religious one. Ms Rose argued that it was racial and therefore unlawful.
Jews are regarded as an ethnic group for the purposes of the Race Relations Act. This was confirmed by a well-known case called Mandla v Dowell-Lee, decided by the House of Lords in 1983.
In that case, brought on behalf of a Sikh schoolboy, Lord Fraser of Tullybelton said:
For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics... The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance.
But this causes a major problem for JFS, as the Court of Appeal explained in its judgment last week.
One of the great evils against which the successive Race Relations Acts have been directed is the evil of anti-Semitism. None of the parties to these proceedings wants or can afford to put up a case which would result in discrimination against Jews not being discrimination on racial grounds. There would have to be something wrong with such an argument.
So Lord Pannick accepts, indeed insists, not only that Jews are an ethnic or racial group and not simply a theological construct, but that for all purposes except those of the OCR and the school, M is a Jew. This is not an easy position to maintain, but its corollary, if it can be maintained, is that what excludes M is not his race or ethnicity but his eligibility to be regarded in Orthodox eyes as a Jew, a matter of pure theology.
Lord Justice Sedley, Lady Justice Smith and Lord Justice Rimer rejected this argument
It appears to us clear (a) that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion, and (b) that to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds. The motive for the discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful.
Nor does the factuality of the ground. If for theological reasons 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 origin, it is hard to see what answer there could be to a claim for race discrimination.
The refusal of JFS to admit M was accordingly, in our judgment, less favourable treatment of him on racial grounds. This does not mean, as Lord Pannick suggested it would mean, that no Jewish faith school can ever give preference to Jewish children. It means that, as one would expect, eligibility must depend on faith, however defined, and not on ethnicity.
JFS is seeking permission to take the case to the UK Supreme Court, which will replace the House of Lords as the final court of appeal in October. The chief rabbi, Sir Jonathan Sacks, made it clear that he would support an appeal. Curiously, though, his comments echoed those of the Court of Appeal.
"The principles underlying membership of the Jewish faith ... have nothing to do with race and everything to do with religion," said Sir Jonathan. "Ethnicity is irrelevant to Jewish identity according to Jewish law."
JFS explained its understanding of the judgment in a helpful briefing note.
The court held that a school can admit only "Jewish" children and may adopt its own working definition of what makes a child "Jewish" but only so long as it does not use a racial criterion in that selection. Going forward, this means that any admissions policy based on who is Jewish must depend on religious practice rather than the test under Jewish religious law as to who is a Jew or any other test, however indirect, which involves descent.
In future, all Jewish schools (whether state or independent) will need to adopt a religious practice test, until such time as the Court of Appeal's ruling is successfully overturned or a legislative amendment is made.
Clearly, this would be highly undesirable. We cannot have inspectors checking how "Jewish" people are. But it strikes me that the real problem was Lord Fraser's ruling in Mandla v Dowell-Lee. Though their ruling was intended to be helpful, I think the law lords were wrong to shoe-horn Jews into the Race Relations Act .
The broad definition of an ethnic group provided some protection for Jews while religious discrimination was permitted. But one has only to visit Israel to see that practising Jews no longer share a common racial or ethnic origin -- if, indeed, they ever did.
There should be no need to regard Jews as a racial or ethnic group now that religious discrimination is, to some extent, unlawful in Britain. The Supreme Court should overturn Mandla v Dowell-Lee and allow Jewish schools to select children on grounds of Jewish law.
Update July 5: The Court of Appeal has not yet issued its formal order in this case. So we still don't know whether M will be allowed to start at JFS next term.
I doubt that he will be, given that the school will be seeking permission to appeal. I would expect the Supreme Court to grant permission to appeal if the Court of Appeal does not. So there would be another hearing some time next year.
Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.
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