British High Court Says Jewish School’s Ethnic-Based Admissions Policy Is Illegal
LONDON — Britain’s Supreme Court declared Wednesday that it was illegal for a Jewish school that favors Jewish applicants to base its admissions policy on a classic test of Jewishness — whether one’s mother is Jewish.
“One thing is clear about the matrilineal test; it is a test of ethnic origin,” Lord Phillips, president of the court, said in his majority opinion. Under the law, he said, “by definition, discrimination that is based upon that test is discrimination on racial grounds.”
The decision, by Britain’s highest court, brings an end to a case that has exposed deep divisions among Britain’s 300,000 Jews and forced the judiciary to consider an ancient question at the heart of Judaism: Who is a Jew?
The case concerns the efforts of a 12-year-old boy, known as M in court papers, to be admitted to J.F.S., formerly the Jews’ Free School, one of Britain’s best-performing Jewish secondary schools. Although it is financed by the state, J.F.S., in North London, is allowed by law to give preference to Jewish applicants.
But its definition of Jewishness is the Orthodox one, set by the chief rabbi of the United Hebrew Congregations of the Commonwealth. Though M is an observant Jew whose father is Jewish and whose mother is a Jewish convert, he is not considered a Jew by the school because his mother converted in a progressive, not Orthodox, synagogue.
M sued J.F.S. He lost, but that ruling was overturned by the Court of Appeal last summer. The school then appealed that ruling; its appeal was dismissed in Wednesday’s decision.
“The ruling represents a definitive end to six decades of exclusion of children who are devout in their Jewish faith, but considered by some to be not quite Jewish enough to enjoy the benefits of their community’s leading faith school,” John Halford, a lawyer for M, said in a statement.
The ruling was a blow to the school, which had already hastily altered its admissions policies because of the earlier court ruling. Now, applicants prove their Jewishness according to a “religious practice test” amassing points for things like going to synagogue and doing charitable work.
In a statement, Russell Kett, chairman of J.F.S.’s governors, said the school had preferred its Orthodox-defined test of Jewishness to its current policy. The altered system, he said, concerned “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 the English legal system.”
The case rested on whether the school’s test of Jewishness was essentially based on religion, which would be legal, or on race and ethnicity, which would not be. Five of the nine Supreme Court judges who heard the case ruled that J.F.S.’s policy directly discriminated on the basis of ethnicity. Two ruled that the policy was indirectly discriminatory. The two dissenters said that the admissions requirement was a religious one that did not depend on ethnicity and violated no laws.
A number of parties formally intervened in court, including the British government, which supported the school; and the British Humanist Association and the Equality and Human Rights Commission, which supported M.
Many Jews of all branches deplored the fact that the matter had even come to court, saying that it should have been handled within the community. But critics of the chief rabbi and the admissions policy said they welcomed the chance to make the school more representative of the broader Jewish population.
David Lightman, an alumnus of J.F.S. who keeps kosher, whose wife is a convert to Judaism and whose daughter was also denied entry to the school on the grounds that it did not recognize the conversion, said that the school’s old admissions policy was narrow-minded and divisive.
His wife is the head of the school’s English department, he said; his daughter, now 15, teaches Hebrew classes. Why, he asked, should they be considered less Jewish than, say, a nonbelieving atheist whose mother happens to be Jewish?
“God can work it out,” Mr. Lightman said. “He’s a big boy; he’s been around for a long time. He can decide who’s Jewish and who isn’t.”
Britain has nearly 7,000 publicly financed religious schools. The ruling will have repercussions for all the country’s Jewish schools, whether private or public, and may also affect Sikh and Muslim schools.
Several of the judges said that that perhaps the law should be amended to accommodate J.F.S.’s concerns. And they asserted that the school was not racist according to the general definition of the word. Its test of Jewishness was in fact a legitimate religious test, they said, albeit one that, unfortunately, clashed with the law.