The Times of London reports:
The Jewish Free School has lost the hard-fought case on the criteria for admissions to this sought-after school. The next step might be to challenge equality legislation itself, as the admissions criteria, found to be racially discriminating, was based on the 3,500-year-old criteria for judging whether a person is Jewish or not, fundamentally by the religion of the mother.
The outline of the case is summed up well in the United Synagogue’s own press release, which I reproduce her with a comment from the Chief Rabbi Lord Sacks at the end.
Narrowest of margins defeats JFS
in the UK Supreme Court
London, 16th December 2009
The UK Supreme Court today, by the narrowest of margins, held that the admissions criteria of JFS, which gave preference in the event of oversubscription to children who are Jewish according to Orthodox Jewish law (either by descent or conversion), were in the definition of the 1976 Race Relations Act, directly racially discriminatory.
JFS lost the case by the narrowest of margins – with five Justices upholding the Court of Appeal’s earlier ruling and four dissenting. However, all of the Justices went out of their way to make it clear that JFS’s admission policy was not ‘racist’ and took great care to make it clear that the Chief Rabbi, the United Synagogue and the governors of JFS acted with great sincerity and are entirely free from moral blame, Lord Kerr describing their motives as ‘unimpeachable’.
The closeness of the Court’s decision underlines the inherent difficulty in applying the complex modern law of discrimination to an ancient religion, particularly where the UK law of direct discrimination does not allow any breach to be justified, however legitimate the motive.
A majority of the Justices expressed the view that the law may be wrong and Lady Hale signalled that an amendment to the Equality Bill should be investigated.
Nevertheless, notwithstanding the sympathy of the Court, the finding that applying the test of Jewish status is directly discriminatory will have a significant and profound effect on Jewish schools and the whole of the Jewish community. This is why the United Synagogue has supported the School’s case.
Lord Rodger in his dissenting judgment said, “The decision of the majority means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief…… Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted. That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching.” He continued “The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.”
Commenting on the decision, United Synagogue President Dr. Simon Hochhauser said, “The United Synagogue is extremely disappointed with the Supreme Court ruling which interferes with the Torah-based imperative on us to educate Jewish children, regardless of their background. 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.”
