Supreme Court : School dispute 'about religion, not race'

School dispute 'about religion, not race'

Edited by Saudi Ali 30.10.2009

A top Jewish school accused of race discrimination told the Supreme Court yesterday that a boy was refused admission because he was not a Jew under the rules set by the Chief Rabbi.

In a test case with implications for how faith schools select their pupils, Lord Pannick QC, representing the school, told a panel of nine Justices of the Supreme Court that this was a dispute about religious law.

JFS (formerly the Jews’ Free School) in Brent, north-west London are appealing to the highest court in the land after three Court of Appeal judges ruled in June this year that its entry criteria, imposed to deal with an excess of applicants. racially discriminated against the boy, referred to as M.

The boy’s father is Jewish by birth, but his mother is Jewish by conversion conducted at a Progressive rather than an Orthodox synagogue and therefore not recognised by the Office of the Chief Rabbi (OCR), Dr Jonathan Sacks.

“The difference in the result is not on the ground of M’s ethnic origins. It is on the ground of a religious dispute between Rabbis about who is a Jew,” Lord Pannick told the justices, headed by Lord Phillips of Worth Matravers.

Being Jewish under the criteria set by the Chief Rabbi was a matter of religious status under Jewish law, he added. “It is not dependent on religious practice or attendance at a synagogue.”

“We say that M failed to secure a place at the school because and only because of the religious criteria applied by the Chief Rabbi as to who is a Jew and those religious criteria do not depend on a person’s ethnicity,” he said.

JFS is now a “very successful” comprehensive secondary school, maintained by the London Borough of Brent, which every year is oversubscribed with applications for admission by two for every place.

He said the appeal concerned whether or not the adoption of an oversubscription criteria giving priority to children recognised by the Chief Rabbi to be Jewish is racial discrimination contrary to the Race Relations Act.

He added that the school’s case was that the criteria it applied were “legitimate and proportionate.”

“We say that a faith school is entitled to adopt an oversubcription policy that gives priority to those children who are members of the religious faith as defined by the religious authority of the faith.”

The mother of the boy converted to Judaism in a non-Orthodox procedure not recognised by the Chief Rabbi, Lord Pannick said.

He said that it was no part of the school’s case that it should be exempt from the Race Relations Act. Rather it was that “properly analysed”, the school’s case was that its entry criteria were not a breach of that Act.

“Our case is that the refusal of the place to M was not an act of race discrimination - that is less favourable treatment on the grounds of ethnic origin.

“We say M failed to secure a place at the school because and only because of the religious criteria applied by the Chief Rabbi as to who is Jewish.”

He said the school had adopted “legitimate and proper” criteria because a faith school was entitled to adopt a policy which gives priority to children who are members of the religious faith as defined by the religious authority of that faith.

The appeal judges had misinterpreted the law in finding that the school’s admission criteria discriminated on racial grounds, the QC added.

He said the criteria applied to all children - many children with Jewish ethnic origins do not qualify and some children who lack ethnic origins are admitted.

If the Court of Appeal decision was allowed to stand, it would always be unlawful for any Jewish school to adopt admissions policies giving priority to children recognised as Jews by their particular branch of the faith.

“Parliament cannot have intended that Jews, unlike other religious groups, could not use schools with oversubscription criteria giving priority to children who are members of their faith,” Lord Pannick said.

The case is set for three days with arguments from interested parties including the Secretary of State for Schools, the London Borough of Brent and the Office of the Schools Adjudicator.

Dinah Rose QC, representing the father of the boy, will argue that the Court of Appeal decision should stand.

Three judges at the Court of Appeal ruled in June this year that this entry criteria racially discriminated against the boy, referred to as M.

The appeal judges said that “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”.

The discrimination against M could not be justified, Lords Justices Sedley and Rimer and Lady Justice Smith ruled.