1. Introduction
On her first day of school in 2007, Yael, a ten-year-old student at a Beit Ya'acov ultra-orthodox elementary school for girls, arrived at what had been her school for the past four years. Upon entering her classroom, however, she discovered that her classmates were all of Mizrahi extraction.Footnote 1 She was further notified she should have no contact whatsoever with any of her former Ashkenazi classmates.Footnote 2 It was then that Yael realised that the students were being physically separated within her school based solely on their ethnicity. The school was virtually being divided into two separate schools, with the Mizrahi students separated from the Ashkenazi students. Physically, the two groups were being isolated in two separate buildings, divided by a partition wall, with separate entrances, different school uniforms and differently timed class intermissions. The school's administration rationalised its actions by going as far as to stigmatise Mizrahi culture and individuals – characterising the Mizrahis as suffering from lower spiritual levelsFootnote 3 – in order to justify this separation. Yael was never to be the same again: her self-esteem was lowered to a point where she hated herself, her dark skin and her dark-skinned parents.Footnote 4
The stunning treatment of Yael and her friends, popularly known as ‘the Immanuel ordeal’, echoes the discriminatory treatment of black students in the United States (US) during the mid-twentieth century.Footnote 5 Both cases, respectively, seem to have been afforded similar antidiscriminatory relief in the courts.
In 1954, the US Supreme Court declared the racial segregation of students in public schools unconstitutional in the famous case of Brown and Others v Board of Education of Topeka (‘Brown’).Footnote 6 In 2009, a monumental decision was delivered by the Israeli Supreme Court against the blatant discriminatory behaviour displayed in the ‘Immanuel ordeal’ in Noar Kahalacha v Ministry of Education (‘Noar Kahalacha’), in which the Court declared the students' segregation to be unlawful as well as unconstitutional. Finally, some have solemnly declared,Footnote 7 we have our own Brown!Footnote 8 But do we?
The superficial clear similarities between Brown and Noar Kahalacha render the comparison between the two cases almost inevitable. Notwithstanding this flattering comparison, however, a closer look into the structure of the two cases reveals what could more readily be considered irreconcilable differences between them, rather than compelling similarities.
My contention in this article is that Brown and Noar Kahalacha bear differences that stem from the distinct patterns of discrimination they represent, and that they reflect these differences squarely. Comparing these cases, therefore, allows us an opportunity to revisit the notion of discrimination and its antidote, antidiscrimination, within two liberal legal schemes: American and Israeli. Interestingly, the differences between the two cases make up what seems at first glance to unite them: the fact that they both afforded protection to groups that were discriminated against on the basis of their origin (race-based origin in Brown and ethnicity-based origin in Noar Kahalacha). The discriminations fought against in these cases, however, carry some important, yet traditionally overlooked differences which part the cases considerably from one another. Drawing on antidiscrimination theories, I shall introduce the dichotomous concepts of de jure/de facto discrimination and difference/sameness discrimination. These concepts will be proved to be determinative in shaping the distinctiveness of each case, as produced through the Court's understanding of the petitioners' discrimination and the legal recognition it warrants.
While the African American victims in Brown were readily recognised as belonging to a distinctive group suffering from discrimination, Noar Kahalacha's Mizrahi victims lacked such clear recognition. Though it has been lingering for over six decades now, discrimination against Mizrahis in Israel is still covert and, to a substantial extent, denied. Accordingly, the discrimination narrative in Noar Kahalacha produced by the court suffers from incompleteness and carries only limited potential for effective application in future struggles to eliminate discriminatory practices against Mizrahis in Israel. Although it carries a strong antidiscrimination sentiment, the Noar Kahalacha decision failed to provide any overarching recognition of Mizrahis as a discriminated social category. Instead, one might even read it, to an extent, as virtually incorporating the illegal ‘separate but equal’ ideology into the heart of its leading opinion, as I will demonstrate below.Footnote 9Brown, on the other hand, carried converse traits. Though criticised for many just reasons, Brown nevertheless strongly signified the recognition by White America of its overarching discriminatory practices, and implied a genuine dedication to break from it.
My argument advances in four parts. In Section 2, I will introduce Mizrahis as a discriminated group, characterised with overarching inferiority in almost every aspect of social mobility indicators. This will set the stage for comparing the two cases as relating to two discriminated groups suffering from systematic discrimination. In Section 3, I will introduce the dichotomous concepts of de jure/de facto discrimination and of difference/sameness discrimination as the building blocks of shaping the path available for discriminated groups seeking relief through antidiscrimination laws. Section 4 will constitute the groups African Americans and Mizrahis as prototypical examples of these dichotomous concepts. It is suggested that the dichotomous underlying concepts of discrimination dictated the scope and strength of the antidiscrimination relief afforded by the courts to abolish segregation in these cases. Section 5 will discuss the injustice embedded in the different scope of protection provided against each type of discrimination and will argue against the implicit utilisation of the concepts of de jure discrimination and ‘difference’ alone as proxies of authentic discrimination.
2. Mizrahis as a Distinctive Discriminated Group
One of the main ethnic fractures of Israeli society lies between the two ethnic groups of Ashkenazis and Mizrahis, which roughly comprise an equal share of Israel's veteran Jewish society.Footnote 10 The Mizrahi group consists of Jews who have Arab and Islamic ancestry, whereas Ashkenazis are of Euro-American descent. Mizrahis, as a general matter, are a disempowered group, suffering from social inferiority traits typical to discriminated groups.Footnote 11 Statistics indicate that Mizrahis' access to the education system, and their representation in it, is poor. Though students are not formally segregated from one another based on their origin, a study held in ‘integrative’ schools has revealed a clear ethnic division in which Ashkenazi students are overrepresented in prestigious science programmes, while lower and middle tracks of education – which offer limited potential for social mobility – are overpopulated by Mizrahis.Footnote 12 This may explain how, upon finishing high school, Ashkenazis are almost 100 per cent more likely to be found eligible for matriculation certificates.Footnote 13 These discriminatory patterns diffuse into higher education where this stratification spreads to the highest levels of academia – academic university faculty – creating particularly substantial gaps. There, the representation of Mizrahis is as low as 9 per cent, and Mizrahi women amount to only 1.7 per cent of faculty members.Footnote 14 Female professors of Mizrahi descent represent only 3 per cent of female professors in Israeli universities.Footnote 15 This low representation decreases even more by deciles in more prestigious science faculty positions.Footnote 16 Israeli law faculties, for example, consist of only 6 per cent of Mizrahis.Footnote 17
A direct reflection of their inferiority in the educational sphere are the enduring patterns of disadvantage in the job market experienced by Mizrahis.Footnote 18 In addition to the general correlation between Mizrahi origin and low economic status,Footnote 19 Mizrahis are also characterised by patterns of underrepresentation in the management job market (which is only 29 per cent Mizrahi, compared to 54 per cent Ashkenazi), and overrepresentation in the blue collar job market (which is 38 per cent Mizrahi as against 21 per cent Ashkenazi).Footnote 20 As a result, disparities in salaries are particularly staggering. Statistics from as recently as 2007 show that the average Ashkenazi employee's salary is roughly 31 per cent higher than that of the average Mizrahi.Footnote 21 Accordingly, the poverty rate among Mizrahis is nearly three times greater than it is among Ashkenazis.Footnote 22 Adding to these discrepancies is the unemployment gap, whereby Mizrahis are disproportionately represented and are unemployed at a rate five times higher than that of Ashkenazis.Footnote 23 Even the military service, traditionally considered a main channel for ‘social fusion’, was recently accused of having contributed its share in creating and perpetuating patterns of inequality.Footnote 24
Moving on to the cultural arena, Mizrahi cultural institutions suffer from manifestly unequal allocations from the governmental budget.Footnote 25 This is not surprising, given that Mizrahis are believed to cultivate inferior cultural virtues, a fact encapsulated in the ridiculed Mizrahi imagery, whereby Mizrahis are reduced to negative stereotypes in popular culture.Footnote 26 Mizrahi cultural marginalism stems also from the geographic periphery and segregational living that characterises their life in Israel.Footnote 27 Systematic inferiority is also demonstrated by the minimal share of Mizrahis of private capital ownership, generated by institutionalised discrimination in housing policies.Footnote 28 The strong nexus between ethnicity and capital was recently more clearly recognised in a government appraisal discovering that living in the proximity of Mizrahis is a factor in lowering property values, while living in the proximity of Ashkenazis raises them.Footnote 29
This is the snapshot of Jewish Israel's social disparities as of the early twenty-first century.Footnote 30 However much it has improved from the past, this social snapshot is still worrying. The slow progress of Mizrahis up the social ladder has primarily reflected the progress and development of Israeli society as a whole rather than some process signifying a neutralisation of the power struggle between Mizrahis and Ashkenazis.Footnote 31 More importantly, even today, the gap between the groups is significant, with some studies indicating its growth over the last decades.Footnote 32 As of today, the Ashkenazi group is positioned at the top of power structures in Israeli society, and constitutes ‘the Archimedean point, from which all the cultures, groups and forces in Israel develop’.Footnote 33
Lastly, it is important to note that, though subject to lingering discrimination for over six decades now, Israeli society still suffers from a dynamic of denial of this phenomenon, which keeps unchallenged the socio-economic inferior position of Mizrahis and its unjust roots.Footnote 34
3. Comparing Apples and Oranges in the Same Orchard
I return now to the shared characteristic of Brown and Noar Kahalacha: Mizrahis and African Americans suffer from discrimination: however, it is different in depth and breadth. It is this reality of discrimination which brings them together, and simultaneously creates the traits that divide them. Generally, Brown can be read as a typical antidiscrimination case aimed at protecting a group suffering from ‘classic’ de jure discrimination within a clear racial sociological dialectic of ‘difference’. Noar Kahalacha, on the other hand, should be read as a case that reflects the limits of antidiscrimination discourse typical to using it to protect a group suffering from de facto discrimination, within a ‘sameness’ social atmosphere. The differences encompassed by the two cases render their similarities limited, yet rich in terms of discrimination typology, theory and analysis. In order to better understand the differences eminent in these discrimination pattern dichotomies and the diverse outcomes they spawn, I shall first turn to introducing their theoretical essence.
3.1 The De Jure/De Facto Discrimination Dichotomy
Two conceptual clarifications are instructive in communicating my argument more intelligibly. The first concerns the notion of de jure as distinct from de facto discrimination. This ephemeral distinction has been progressively blurred, and sometimes it seems to signify little more than a legal conclusion.Footnote 35 Deservedly, it has been criticised for having an elusive, false jurisprudential effect, enabling the court to draw a thin, changeable line between de facto and de jure acts.Footnote 36 Though fully aware of this criticism and supportive of it, I still maintain that at some level the distinction matters; specifically, it matters to the way in which discriminated groups perceive themselves and how others perceive them. To use the distinction critically, I hereby employ it consciously in its extremely technical sense, to make my theoretical point. When using the phrase ‘de jure discrimination’, I refer to a most materialistic, formal meaning: namely discrimination that is affected by overt, explicit and systematic laws and regulations. ‘De facto discrimination’, on the contrary, results from actions that are covert and are not formalised in primary legal texts. The second clarification pertains to the identification of most liberal legal systems as systems which underwent a transition from a ‘discriminatory stage’, wherein both de jure and de facto discriminatory practices were used against disempowered groups, to a ‘remedial stage’, wherein the same legal system uses its antidiscrimination laws to remedy existing discrimination, be it de jure or de facto.Footnote 37
Against this conceptual backdrop I wish to advance the novel argument that discriminatory legal rules have a potentially important constructive and constitutive value for groups seeking equality through the law.Footnote 38 This notion does not imply that discrimination is virtuous. Rather, it stresses that a specific form of discrimination – namely de jure discrimination, primarily set to negatively influence the well-being of the discriminated group in the discriminatory stage – carries with it some future positive remedial effects. It improves the group's ability to better utilise the legal system for eroding discrimination in the remedial stage. More specifically, de jure discrimination creates effects that are crucial to a successful legal fight. These effects shape the manner by which a discriminated group's status is generated, rendering it eligible for antidiscrimination relief. Conversely, groups that suffer mainly from de facto discrimination often lack this ability. Thus, groups confronted with de jure discrimination in the discriminatory stage might be better off in the remedial stage than groups only facing de facto discrimination. The reason for this paradox is simple: it is easier to fight legal battles for a group remedy when a group has already been identified as the ‘outlawed’ and is asking to be ‘inlawed’. In doctrinal terms, my argument is apparent in the prerequisite of the Equal Protection jurisprudence – which prevails in Israel in a manner resembling the United States paradigm – requiring that one must be discriminated against because of one's membership in a recognisable, distinct group in order to be acknowledged as a discriminated group.Footnote 39 Groups that suffer from de facto discrimination, on the other hand, face structural barriers in fulfilling this requirement.
The following is a brief introduction of the cumulative effects de jure discrimination confers on a group seeking relief at the remedial stage:Footnote 40
3.1.1 The Distinctiveness Effect
De jure discrimination perpetuates the identity of the discriminated group as distinct and recognisable. Arguably, it identifies groups along lines that are artificial, unstable, inaccurate,Footnote 41 baseless at times and vicious always. De jure identification of a ‘group’ is by far understood as a product of historical, socio-political construction, articulated to best serve and maintain the hegemony's dominance.Footnote 42 Nevertheless, and despite the fallacy of its essence, de jure discrimination also constitutes legally recognisable groups. At the remedial stage, these groups can use, for their own benefit, the same classifying rhetoric that was used to define and exclude them; namely, they can trap the legal system by its own definitional creations and use them strategically to protect and benefit the group.Footnote 43
3.1.2 The Visibility Witnessing Effect
De jure discrimination increases the sense of ‘realness’ of the group's discrimination-based suffering. The legal discourse of discrimination not only classifies groups and shapes their distinctiveness, but also manifests their presence as the law's subjects. This public presence also narrates their discriminated experience, vindicating the group's need for, and entitlement to, legal redress.
3.1.3 The Collaborating Organisational Effect
De jure discrimination increases the ability of minorities to politically organise both within and between their groups, in terms of gaining goodwill supporters from within the hegemony. This grants them a tool which has a key role in determining their political power.
3.1.4 The Institutional Memory and Blameworthy Effect
De jure discrimination powerfully situates its addressees within the legal system as the subjects of legal practice. Therefore, the notion of institutional memory and blameworthiness of the hegemony suggests that the hegemony deems it important that the same legal mechanism which was used against the group, be used by the group to provide the remedies it warrants.
3.1.5 The Presumption of Intentional Discrimination Effect
The presence of de jure discrimination is an important factor in establishing that a discriminatory act was intentional. Intention to discriminate, in return, is considered indisputably unjust and warrants strong legal reaction in favour of its victims. As opposed to the rather institutional nature of the former effect, this effect is more internal to the legal system's perception of discrimination as particularly severe when motivated by intent.
To summarise, discrimination discourse dictates the way in which discriminated groups are viewed by the law and imposes frameworks that structure what can be experienced or what meaning this experience can encompass. Groups suffering from de jure discrimination, while brutally excluded from society by the law, were included in society's primary legal text.Footnote 44 They received ‘visibility’ (albeit notorious), and were constituted as a legal entity (albeit as a discriminated, invented entity). It was within the discrimination discourse that they actually existed, while de facto discriminated groups did not. Not being legally excluded, they were actually completely invisible, and ‘none included’.
3.2 The Sameness/Difference Dichotomy
The second dichotomy to dominate the antidiscrimination stratagem is the one manifested in the perception of ‘difference’ as underpinning the basic notion of discrimination. Heavily relying on ‘difference’ in legally defining discrimination, this notion fails to acknowledge that some groups are actually discriminated against within settings characterised by ‘sameness’. To explicate, the claim I advance here – using the difference/sameness dichotomy – is that rooting a discrimination theory in the idea of ‘difference’ alone misses the bulk of discrimination practices that are formed within a socio-legal ‘sameness’ environment. Under this proposition, groups associated by socio-legal means with the hegemony would not be recognised as discriminated against. The group's real ‘difference’ from the hegemony, in de facto terms, is blurred by this association. More generally, I argue that by posing as the ‘antidote’ to discrimination, antidiscrimination discourse is trapped by ‘poisons’ carried by the same drug. Instead of judging its addressees according to the simple, however broad, question ‘were they discriminated?’ as expected by the notion of ‘antidiscrimination’, it allows traditional notions of ‘discrimination’ to dictate the scope of its relieving effect.
Understanding the concept of discrimination as working within the difference/sameness dichotomy scheme is intuitive. ‘Differences’ are sought in order to generate and justify discriminatory differential treatment.Footnote 45 Yet, I find it useful to revisit the conceptual roots of discrimination, even only briefly, so as to better understand this configuration and, consequently, its paradoxical implications and limitations on advancing equality. Consider first the dictionary definition of ‘discrimination’. Dictionaries typically offer at least two definitions of discrimination that diverge into formal and substantial inquiries. First, discrimination is defined as the making of distinctions.Footnote 46 Accordingly, on the methodological level, the practice of distinction requires noticing ‘difference’, be it real or imagined.Footnote 47 On the substantive level it requires that these differences serve as the motivation for differential treatment of the group. This essential component of discrimination is perfectly embodied in the formal paradigm occupying the US Supreme Court's remedial discourse, associating antidiscrimination primarily with ‘anti-classification’ or ‘anti-differentiation’.Footnote 48 The second dictionary definition is the ‘disadvantaging of a group’.Footnote 49 This more substantive definition, while offering a broader conception of discrimination, still stresses the pivotal role difference plays in it.Footnote 50 It requires that an identifiable ‘different’ group be subject to subordination while denying this possibility for ‘same’ groups. Both definitions hence are blind to the fact that sameness, not only difference, can distribute power and enable discrimination. Although being identified as ‘same’ generally protects a group against discrimination, attribution of ‘sameness’ to a group in circumstances where its difference is denied renders it ineligible for protection provided by antidiscrimination law. Within this conceptual framework, sameness arises where difference sinks. The two concepts are positioned as a zero sum game, in a multifaceted reality, tolerating the subordination of 'sames', simply because they are not ‘different’. Under this paradigm, discriminated groups that allegedly bear no difference from the hegemony are facing substantial difficulties in seeking the protection of an antidiscrimination law. Their vulnerable existence within a ‘sameness’ socio-legal atmosphere calls for a special, more nuanced analysis.
4. Discrimination Typology: African Americans, Mizrahis, and their Distinctiveness
4.1 African Americans as a De Jure Discriminated Group
African Americans constitute the most prominent group to have historically suffered from de jure discrimination in the United States, thereby reflecting the peculiar way by which de jure discrimination creates a legally cognisable discriminated group. Both slavery and the Jim Crow laws were aimed at African Americans, creating a state-sponsored, constitutionally protected system of racial discrimination that took place even after the abolition of slavery from 1890 through the mid-twentieth century.Footnote 51 To make the point clearer within the American context, one can distinguish the experience of African Americans from that of Mexican Americans, who did not explicitly fall under any of America's de jure discriminatory regulations during the Jim Crow era. Although almost exclusively not subjected to prominent or legally visible de jure discrimination,Footnote 52 Mexican Americans nevertheless did suffer from discriminatory practices such as chronic abuse and segregation.Footnote 53 In accordance with my argument, this group characteristic can offer a new prism for understanding why African Americans were more successful than Mexican Americans in utilising the legal system at the remedial stage to their benefit, however limited.Footnote 54 Part of this success can be traced down to the contribution their de jure pattern of discrimination had to the process, mainly in the inception period of the remedial stage.Footnote 55
Despite their perception as a group enjoying ultimate recognition as being discriminated against, it should be noted that, under contemporary American legal discourse, the African Americans' status has changed dramatically. Dominated by a ‘colourblind’ ideology,Footnote 56 and characterised by the complete erosion of formal discrimination, the American legal system currently treats African Americans as ‘colourless’ individuals, thereby depriving them of most of the benefits obtained by the aforementioned effects.Footnote 57 This article's contention, nevertheless, seems to be strengthened by this evinced legal transformation, which ascertains the strong nexus between de jure discrimination and the efficacious legal fight for equality. Hence, in comparing Noar Kahalacha with Brown, this article is able to demonstrate the full force of its argument, by capturing in Brown a moment in time when the transition to the remedial stage in America was in its initial phases and the freshly induced effects of de jure discrimination were most felt.Footnote 58
4.2 Mizrahis as a De Facto Discriminated Group
The Mizrahis are a legally unrecognised group. Despite being subjected to lingering de facto discrimination, Mizrahis are largely absent from the Israeli antidiscrimination discourse. This somewhat surprising absence is better understood when compared with the social and legal status of the Israeli Palestinians,Footnote 59 a group that is perceived as the prototypical de jure discriminated ‘other’ in the Israeli socio-legal context. Furthermore, Israeli socio-legal pathology has positioned Palestinians concurrently at the discriminating stage and remedial stage, wherein they are simultaneously discriminated against and granted protection from discrimination through antidiscrimination laws.Footnote 60 Measured against the Palestinian saliency, the unrecognised socio-legal status of Mizrahis is easier to comprehend. The legal system reveals very small and fragmented traces of acknowledging anti-Mizrahi discrimination, in either its discrimination or antidiscrimination discourse, rendering the existing literature and case law regarding antidiscrimination laws relatively irrelevant to their case.Footnote 61
In one of the rare discussions of the Mizrahi group in the Israeli legal discourse, a Mizrahi scholar has observed:Footnote 62
What were the legal manifestations of the status of Mizrahi Jews? The issue is much more subtle than that of the status of Israeli Arabs or women. In the case of Arabs and women, explicit legal norms discriminated or at least recognized differences. With regard to the Mizrahim, Israeli law appears to have been blind. Formally they have been treated as equal.
My legal analysis, however, goes against existing legal categories as dictating the realm of criticism. Therefore, notwithstanding the absence of Mizrahis from the surface of the legal system, I endorse identifying Mizrahis as a legal category eligible for antidiscrimination relief. On that same token, this endorsement acknowledges as well as challenges the unique pathologies eminent in the Mizrahis' struggle for equality, generated by the aforementioned dynamic of denying their discriminated status.
4.3 African Americans as Excluded ‘Others’ (Establishing ‘Difference’)
Using legislation to discriminate provokes a sharper sense of humiliation, of otherness and of alienated outsider-ness.Footnote 63 Reflecting this notion is Dean Ely's psychological approach to the legislative process, which represents de jure discrimination as a positioning of the relations between the relevant groups in a ‘we–they’ dichotomy. ‘We’ refers to the hegemonic oppressor, represented, in the case of African Americans, by the white legislator, while ‘they’ refers to African Americans as the de jure discriminated group.Footnote 64 In this framework, discrimination labelled African Americans as a 'minority' in the sense that there is a majority manifesting political superiority over them, and forcing them as a group to admit their relative political powerlessness. This explains why African Americans, as the addressees of the discriminating laws, could not see themselves as its authors.Footnote 65 De jure discrimination against African Americans created a clear ‘we–they’ political structure, which encouraged the development of a group consciousness among its own members and vis-à-vis the white group.
4.4 Mizrahis as Included ‘Sames’ (Establishing ‘Sameness’)
The Israeli legal system draws heavily upon common law tradition and, like the latter, constructed its account of discrimination around the axle of ‘difference’ as its constitutive element. Adopting the Aristotelian justice equation, the Israeli Supreme Court has embraced the American idea of ‘discrimination as classification’Footnote 66 in its founding case law concerning conceptualising what constitutes ‘discrimination’.Footnote 67 Within this conceptual framework, Mizrahis are almost inevitably unidentifiable, and are therefore set no ‘class’ by which an Aristotelian query can be ignited.
The Israeli legal system has, formally, adopted the ‘melting pot’ ideology that promotes a Zionist Jewish ethos of one land for all Jews. This mechanism proposed a unifying, sameness-based, ‘all Jew encompassing’ de jure rhetoric. Exemplary of this is the Israeli Law of Return of 1950,Footnote 68 declaring the right of every Jew to immigrate to Israel, supplemented by a provision in the Nationality Law of 1952 that grants automatic Israeli citizenship to every immigrant Jew.Footnote 69 These laws function, in effect, as political signifiers, demarcating Israel as an arena for fighting ‘outside’ social threats, thereby dismissing as irrelevant ‘internal’ intra-Jewish social problems of hierarchies and power relations.Footnote 70 Differential treatment statutes often focus upon Jewish exclusiveness, as demonstrated, for example, by Israel's ban, through a constitutional basic law, of non-Jewish ownership of lands.Footnote 71 This structure largely hid the Mizrahis’ suffering from de facto discrimination and has made the legal sphere both structurally and symbolically irrelevant to the Mizrahi struggle for equality.Footnote 72
The Arab-Jewish dialectic under which Mizrahis are considered ‘sames’ is further nurtured by their socially perceived identity. Mizrahis are in a way both Jewish and Arab. Their sameness is therefore twofold: first, they share an illusory ‘sameness’ with the Ashkenazi hegemony; more specifically, they share the fact that they are both ‘fundamentally different’ from the ultimately defined ‘others’ – the Palestinians – by virtue of their shared nationality and religion. Profoundly, however, the hegemony in Israel has built itself up by relying on the Mizrahis' consent, affirmation and consensus, rather than on overt submission and emphasis on differences.Footnote 73 It treated the Mizrahis as ‘brothers’ (more plausibly, as sisters …) coming from the Arab Diaspora to the land promised to all Jews, while at the same time designated them to be their Jewish society's working and exploited class.
Secondly, and concurrently with their perceived equal membership of the Israeli Jewish hegemony, Mizrahis share with Palestinians – by virtue of their Arab descent – similarities that are at best unacknowledged and at worst tabooed and denied. These relatively immutable similarities, analysed from an Orientalist vantage point – which tends to denounce Arab culture and origin as inferior to that of the European – function as primary generators of discrimination against Mizrahis.Footnote 74 In these respects, they suffer from discrimination by virtue of sameness rather than difference.
Understanding Mizrahi identity as constructed within ‘sameness’ warrants the introduction of yet another socio-legal Israeli phenomenon: namely, the ‘dynamic of denial’ from which Mizrahis suffer. This notion of popular denial was identified by a prominent Mizrahi critic within his theoretical critique of Zionism.Footnote 75 Rejecting the idea that Zionism was constituted on Jewish nationalism alone, Yehouda Shenhav identifies the triad of nationalism, religion and ethnicity as lying at the heart of the Zionist project. Besides providing a conceptual framework for Zionism, the triad functioned as ‘categories of practice’. Put simply, Shenhav's argument is that Zionism excluded Palestinians as a national practice, excluded Mizrahis (and Arabs) as an ethnic practice, and excluded all non-Jews as a religious practice.Footnote 76 Interestingly, however, contrary to its non-Jewish exclusionary practices, Zionism used unique ‘exclusion alongside inclusion’ practices vis-à-vis Mizrahis as part of its genuine attempt to realise the dream of the ‘Jewish state’. Identifying Zionism as premised on this conceptual practical triangle not only challenges the traditional perception of it as a purely national project, but also provides, in my opinion, the analytical framework for establishing the dynamic of denial vis-à-vis Mizrahis. The hidden ethnic premise of Zionism and its practicality, specifically, constituted the ethnic division within Israel and nourished it.
This dynamic of denial dictated the three manners in which the Mizrahi ethnicity category in Israel is generally perceived: (i) as nonexistent;Footnote 77 (ii) as an essentialist category signifying a ‘cultural’ group of people sharing some cultural background similarities; and (iii) as the new Israeli home-grown class suffering from a disadvantage in education, geographic residence, employment, and so on.Footnote 78 All of these perceptions are reductionist in the sense that they exclude considerations of historical and political contexts, which led to creating Mizrahis as an identifiable groupFootnote 79 – at least in the sense that belonging to it has substantial distributional effects.
In sum, anti-Mizrahi discrimination is constituted and nurtured within a socio-legal ‘sameness’ context and ‘difference’ denial, which deprives them of their right to enter the garden of antidiscrimination Eden and enjoy its fruits, albeit unripe.Footnote 80
5. Reflections on Typicality: Brown and Noar Kahalacha
Brown and Noar Kahalacha squarely reflect their differences in discrimination types. The extent and firmness of legal recognition that both groups were accorded by the courts were fundamentally different. Detailing their impact on the courts' reasoning in both cases, I shall now demonstrate how central these overlooked differences in discrimination types are to utilising the law for the benefit of discriminated groups.
5.1 Recognition as a Distinctive Group
As explained before, de jure distinctiveness is imperative for a group wishing to use the legal system to fight against discrimination. Mizrahis, who suffer from a dynamic of socio-legal denial of their experience as a discriminated group, lack this crucial virtue, and the legal system has had an important role in reinforcing this interplay. Mizrahis' antidiscrimination litigation has been meagre and generally ineffective,Footnote 81 and the Noar Kahalacha case is no different: although it revolved around discrimination against Mizrahis, it failed to identify them as a legally recognised group.
In introducing the rival parties before it – namely, the Ashkenazi school administration and the Mizrahi students – the Court drew on the religion-related language offered by the respondents to justify their discriminatory practices, a practice which was in effect rejected by the Court itself as discriminatory. Instead of identifying the parties in the school as microcosmic representatives of the larger Mizrahi–Ashkenazi rift, the Court identified them as ‘Ashkenazis’ and ‘Sephardics’.Footnote 82 This well-known divide, which originated within a historical Jewish religious medieval context, is irrelevant to the rift that generated the segregation in Immanuel: a political rift which reflects the modern Israeli-made Ashkenazi-Mizrahi divide.Footnote 83 The religion-based divide between the Ashkenazi and Sephardic cultures has some bearing on the level of integrative leaving practices to a limited extent,Footnote 84 but they are all traditionally exercised outside the scope of the elementary educational systems.Footnote 85 Notwithstanding its irrelevance to the segregation at hand, however, this divide was cynically abused by the ultra-orthodox Ashkenazi group in order to exclude the Mizrahi students. Read against this realisation, the Court's incorrect categorisation of the parties was not merely a misuse of the language, but also an act that determined the social context upon which the whole case was adjudicated. In assigning the category of ‘Sephardic’ to the discriminated students instead of ‘Mizrahi’, the Court disregarded an Israeli reality in which the latter, not the former, suffers from systematic discriminatory practices. This point is clearly shown in Justice Meltzer's appropriate choice to identify the parties before him as Ashkenazis and Mizrahis, putting the conflict in its richer and more accurate context.Footnote 86
The experience of African Americans in ‘naming’ them and identifying their group by the Court was completely different, but harder to trace through identifying some parallel distinctive ‘legal process’ for the simple reason that, for the Court, the group pleading before it was undeniably identifiable. The Brown Court plainly introduced the various petitioners before it as ‘minors of the Negro race’, thereby affirming and acknowledging their status as a generally identifiable group.Footnote 87 This group recognition was not only effective across different states in the US,Footnote 88 but also applied across various discriminatory practices beyond segregation in education. For example, Moose Lodge No 107 v Irvis and Others Footnote 89 presented the equal protection claim of a ‘negro’ who was denied service in a club. Palmer and Others v Thompson and Others Footnote 90 presented the equal protection claim of ‘Negro citizens’/'black citizens' against the local authority which decided that closing a public pool was preferable to desegregating it. In all these cases, the courts were never mistaken, inaccurate or divided as to who sought their protection, regardless of the extent to which this protection was provided, if at all.
5.2 Visibility: Telling the Story of Discrimination and Neglect
De jure discrimination provides public presence to its subjects and narrates their discrimination experience. The process in which past de jure discrimination was openly discussed in the courts at the discriminatory stage, in turn, affected the transparency and visibility of both the group's ‘real’ existence and the group's oppression.
A compelling explanation for Brown's monumental eminence in the discrimination discourse might be exactly the emphasis of its judges on openly referencing the suffering and social exclusion of African Americans through de jure discrimination. The National Association for the Advancement of Colored People (NAACP), which argued the case, created a narrative of African American suffering which was embraced by the CourtFootnote 91 that emphasised the story of the group's oppression.Footnote 92 Recognising it as all-encompassing, the Court referred to this suffering as largely experienced by all members of the discriminated group of African Americans. The institutionalised nature of the discrimination in issue represented, in the eyes of the Court, a broader picture of discrimination in educational bodies from which African Americans suffered nationwide.Footnote 93
An opposite effect is reflected in Noar Kahalacha, in which the majority decision refrained from narrating the general story of discrimination from which Mizrahis suffer in Israel. By disregarding the fundamental facts which rendered the segregations in this case outrageous, the Court signified its decision to distance itself from Mizrahi suffering. Moreover, in choosing to identify the segregated students as ‘Sephardic’ rather than ‘Mizrahi’, the court has rendered the Mizrahi political story far less relevant to the case.
Interestingly, even within the religious paradigm, the Court's decision lacks any reference to the narrower narrative of discrimination against the Sephardic community within the Jewish ultra-orthodox society or even within the educational system.Footnote 94 Rather, it reviewed and criticised the isolated discriminatory practice of the specific school of Beit Ya'acov in Immanuel, portraying the case as ‘local’ as possible, thereby trivialising the severity of the systematically applied discrimination in education from which the ‘Sephardi’ community suffers in ultra-orthodox communities. Surprisingly, Justice Meltzer, who – unlike his bench counterparts – correctly categorised the segregated students as ‘Mizrahis’, also refrained from further discussing the overall position of Mizrahis in Israel and omitted any clear generalisation of the issue at hand in other fields or sectors where similar discrimination exists. This omission can be explained as proving the dynamic of denial to be effective even within decisions that are partially cognisant of Mizrahi suffering. A similar effect of this dynamic can be found in the growing body of case law regarding discrimination against Mizrahis in admission to night clubs.Footnote 95 There, as well, one can identify this denial recognition pattern, whereby the courts allow discrimination claims by Mizrahis, while refraining from mentioning a Mizrahi category or the Mizrahis' suffering as a discriminated group.Footnote 96
5.3 Sustainability and Endurance of Recognition
The strength and sustainability of a case is best evaluated by its heritage. Monumental is a case that changes the reality of the lives of its beneficiaries, and functions as a prominent precedent in future cases. Notwithstanding its lagging impact on the abolition of the reality of segregation in America, Brown is celebrated as the starting point of this abolition. Its strong legal legacy was the ‘legal recognition’, as Derrick Bell states: ‘The significance of this decision is that it altered the status of African Americans.’Footnote 97 More importantly, from Brown onwards, the viability of every segregation claim brought into court by African Americans was immediately and fully discussed. No special rhetoric or epistemological efforts were required by the courts to define the petitioners or acknowledge their discriminated position. This ease in asserting claims was the unrecognised yet crucial impact of the previous de jure discrimination, which established African American group recognition.Footnote 98 The conceptualisation of litigation as a means of seeking equality between different identifiable groups prompted African Americans seeking equality to bring their segregation claims to court. De jure discrimination thus had the structural effect of enabling the group to gain better control over attempts to reshape the educational system.Footnote 99
Evaluating in the same way Noar Kahalacha's legal heritage to its full extent might be somewhat premature, in terms of subsequent legal analysis as well as practical experience. However, some signs may indicate, even at this early stage, how limited its scope is expected to be. First, regarding the facts of the case itself, as of today not only has the segregation at Immanuel's Beit Ya'acov school not been abolished, it has been reshaped into a more escalated controversy. The Ashkenazi school management, as well as the Ashkenazi parents, initially ignored the Court's decision. Later on, as the pressure from the Court for compliance mounted, they found other creative ways to avoid effective integration with the Mizrahi students.Footnote 100 To date, after exhausting compliance-seeking efforts by the petitioners through repeated contempt of court proceedings, the rival parties have come to a self-induced ‘compromise’ in which the schools are ‘voluntarily’ completely segregated.Footnote 101 Furthermore, in contrast with Brown, no ripple effect has been identified in other schools, and the questionable ‘change’ generated by the Noar Kahalacha decision was confined to the school in the settlement of Immanuel alone. As for the potential heritage in terms of legal analysis of Noar Kahalacha, no greater success is noted here either, given the fact that the Court has not taken the opportunity at hand to make a statement, as a general matter, as to the Mizrahis' subordinated status in Israel. Treating the case before it almost as a ‘private dispute’ case, the Court referred to the specific rivals – the Beit Ya'acov school and its students – as its sole addressees. Identifying the groups before it as being outside the Mizrahi–Ashkenazi socio-political rift and positioning them instead on the Sephardic–Ashkenazi religious divide spectrum, the Noar Kahalacha ruling has further limited the applicability of the case and its authoritative value. Simply put, one can imagine how this case might be deemed irrelevant to future segregation of Mizrahis cases brought before the same court, for example, in cases dealing with the secular education system, where segregation has been proven to exist.Footnote 102 In this respect, Justice Meltzer's usage of the Ashkenazi–Mizrahi divide, however limited, still carries some potential for future utilisation by legal agents seeking legal redress for Mizrahis against discrimination in education. In his opinion, Mizrahis exist within Israeli sociality, not just within its religious community, and are recognised as a group, as opposed to their absence from the ruling suggested by the other panel justices. It comes as no surprise, then, to find that Justice Meltzer was the only one on the bench to openly and directly compare Brown's legacy with his own decision.Footnote 103
Furthermore, with respect to the Mizrahis' struggle for equality more generally, although extensively cited in subsequent cases,Footnote 104 none of the references made to Noar Kahalacha considered cases in which a Mizrahi claim against discrimination was raised, notwithstanding the fact that tens of such claims have been deliberated and decided by Israeli courts over the last three years.Footnote 105 Interestingly enough, most of these decisions can themselves be easily associated with the same critique that Noar Kahalacha bears: they, too, fail to clearly recognise Mizrahis as the group to which the plaintiffs belong and based on which they were discriminated.Footnote 106 Further manifesting the ‘dynamic of denial’ advocated throughout this article, this legal phenomenon is particularly peculiar, given the fact that these cases were brought before courts based on the Forbidding Discrimination in Products, in Services and in Admittance to Entertainment Clubs and to Public Places Law, one of the declared goals of which was to prevent discrimination against ‘men with Mizrahi appearance’.Footnote 107 The difficulty of these courts in acknowledging the Mizrahi identity induced discrimination against the plaintiffs, on the one hand, while providing antidiscrimination relief, on the other, which indicates they share the same theoretical framework upon which Noar Kahalacha was administered.Footnote 108 Both legal settings were similarly shaped by the effects of the de facto-sameness discrimination from which Mizrahis suffer.
6. Conclusion
Reflecting on the interplay of the de jure/de facto and difference/sameness dichotomies with achieving legal recognition, a simple proposition might be that an explanation for the higher levels of recognition given to different discriminated groups is the supposition that some groups suffered more than others. This proposition might be true, but levels of suffering are not used as proxies for recognising a group as discriminated. Moreover, as a theoretical matter, the nature of the suffering – be it de jure or de facto – or the nature of the social settings within which it is maintained – be it of difference or of sameness – should have no bearing on recognising a group as one and identifying its entitlement to antidiscrimination remedies. Notwithstanding these conceptual understandings, the reality of African Americans and Mizrahis, as reflected in the cases analysed here, prove the opposite.
Epilogue
Yael's story is not hers alone; it is not even the story of her 180 schoolmates. Rather, it is the story of many Mizrahi pupils in contemporary Israel, whereby discriminatory practices against them within the educational system are not limited to the ultra-orthodox community. Similar segregatory practices have been found at some of the top schools in the state's secular school system.Footnote 109 There, such discriminatory practices are extremely hard to trace and combat effectively since, from a legal perspective, it is undoubtedly easier to fight against the more blatant and traceable practices. The goal of Mizrahi-cause lawyers and legal academics is to abolish such discriminatory practices everywhere. Ironically, their biggest challenge in the process of achieving that lies less in proving the discrimination and more in proving that Mizrahis exist as a group deserving legal protection against that discrimination. With African Americans, the challenge was converse. Noar Kahalacha and Brown, therefore, are too distinct from one another to name the former after the latter. They are, however, connected in a way that holds the key to better understanding the typology of the notion of discrimination and the limits it bears in fighting against it when using antidiscrimination legal tools.
