The UK Supreme Court Dismisses the Jewish Free School Appeal
A nine-judge panel of the United Kingdom Supreme Court today delivered what the Guardian is describing as ‘the most controversial ruling since the supreme court [sic] was created’. Whilst the Court, in the words of its President Lord Phillips (at ), ‘has not welcomed being required to resolve this dispute’, it ruled, in a 259 paragraph judgment, that the Jewish Free School’s (JFS) admissions policy amounted to direct discrimination on the basis of race. Whilst further commentary will undoubtedly follow over the next few days, there follows a brief summary of this decision. Mairead Enright blogged on the Court of Appeal’s decision on this case when the Supreme Court heard the case in October (here and here).
At issue was whether part of the JFS’s policy for choosing between potential pupils in the event of oversubscription (and, as Lord Phillips noted at , ‘JFS is an outstanding school. For many years far more children have wished to go there than there have been places in the school’) which gave priority to applicants regarded as “Jewish by birth”. M, a child who applied to the JFS, was denied a place at the school because, in the determination of the Office of the Chief Rabbi of the United Kingdom, M’s mother was not Jewish at the time of M’s birth as her conversion to Judaism had not taken place in an Orthodox synagogue.
E, the boy’s father, brought an action against the JFS under s.1 Race Relations Act 1976 on the basis that the “Jewish by birth” policy constituted either direct discrimination on the basis of M’s ethnic origin or indirect discrimination as it was disproportionate to the justifiable aim of ensuring that a faith based school serves a particular faith. Lady Hale sums up the mutually exclusive categories of direct and indirect discrimination in English law (at ):
‘The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality or ethnic or national origins. Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins’.
Five judges (President Phillips together with Justices Mance, Hale, Kerr and Clarke) followed the Court of Appeal (R(E) v. Governing Body of JFS  EWCA Civ 626) in finding direct discrimination. Whilst the four Justices in the minority did not find direct discrimination, it was split, with Justices Hope and Walker considering that the policy involved indirect discrimination in not considering those applicants which the JFS did not recognise as Jewish on an individual basis. Only Justices Brown and Rodger would have allowed the JFS’s substantive appeal.
As to the justiciability of the issues at stake, and particularly in response to accusations levelled at the Supreme Court by the United Synagogue that it was interfering with ‘Torah-based imperative on us to educate Jewish children’ and imposing ‘a non-Jewish definition of who is Jewish’, Lord Hope acknowledged (at -) that whilst, ‘it is not the business of the courts to intervene in matters of religion … the divide is crossed when the parties to the dispute have deliberately left the sphere of matters spiritual over which the religious body has exclusive jurisdiction and engaged in matters that are regulated by the civil courts.’
Referring to the Mandla case establishing the test for an ethnic group under the Race Relations Act (Mandla v Dowell Lee  2 AC 548), Lord Phillips asserted (at ) that ‘whatever their racial, national and ethnic background, conversion unquestionably brings the convert within the Mandla definition of Jewish ethnicity.’ However, whilst he acknowledged that it was possible to identify two different but largely overlapping cohorts of Jewish people (at ), ‘those who are descended by the maternal line from a Jew, and those who are currently members of the Jewish ethnic group’, he concluded that under the Race Relations Act, ‘[d]iscrimination against a person on the grounds that he or she is, or is not, a member of either group is racial discrimination. JFS discriminates in its admission requirements on the sole basis of genetic descent by the maternal line from a woman who is Jewish, in the Mandla as well as the religious sense. I can see no escape from the conclusion that this is direct racial discrimination.’
This is not to say that some of the majority relished a decision that some of them clearly considered that the present position of the law forced them to make. Lord Phillips came close to calling for a reform of the law of discrimination in asserting, (at ), that,
‘This demonstrates that there may well be a defect in our law of discrimination. In contrast to the law in many countries, where English law forbids direct discrimination it provides no defence of justification. It is not easy to envisage justification for discriminating against a minority racial group. Such discrimination is almost inevitably the result of irrational prejudice or ill-will. But it is possible to envisage circumstances where giving preference to a minority racial group will be justified’.
By contrast, Lady Hale bluntly asserted her view that the religious basis of the JFS’s admissions criteria was not at issue (at ), ‘[n]o-one doubts that [the Chief Rabbi] is honestly and sincerely trying to do what he believes that his religion demands of him. But that is his motive for applying the criterion which he applies and that is irrelevant. The question is whether his criterion is ethnically based.’
Lord Brown, who would have dismissed the appeal, stressed (at ) that the law recognised Jews as a distinct ethnic group, ‘so as to provide comprehensive protection to those suffering discrimination on racial grounds’. Moreover, given the ability under the Race Relations Act to justify indirect discrimination, he concluded (at ) that, ‘[i]t therefore seems to me of the greatest importance not to expand the scope of direct discrimination and thereby place preferential treatment which could well be regarded as no more than indirectly discriminatory beyond the reach of possible justification.’
However, he found refused to contemplate even a finding of indirect discrimination. He concluded, (at ) that the majority position amounted to, ‘the imposition of a test for admission to an Orthodox Jewish school which is not Judaism’s own test and which requires a focus (as Christianity does) on outward acts of religious practice and declarations of faith, ignoring whether the child is or is not Jewish as defined by Orthodox Jewish law’.
Whilst multiculturalism is a term tellingly absent from the judgments, its influence is evident in Lord Phillips’s efforts to analyze the boundaries of the Jewish ethnic group (beginning at ) and Lady Hale’s explanation of discrimination law (beginning at ). The implacability of Lord Brown’s dissent, together with the discomfort displayed by Lord Phillips at his decision, provide commentators with a window to the debates upon the boundaries of liberalism and multiculturalism played out between the lines of the Supreme Court’s decision.