When is it impermissible for a faith school to discriminate in its admissions policy? That is the question raised in the decision of the Supreme Court in R (E) v. Governing Body of JFS [2009] UKSC 15 [2010] 2 W.L.R. 153. The decision should lead to an inspection of the rights protected by anti-discrimination law in the education field and to an inquiry whether the rights of all students are sufficiently protected from discrimination under the law.
A claim for judicial review was brought against the governing body of the Jewish Free School for failure to offer M a place. Under the rules of the Office of the Chief Rabbi of the UK (and indeed Jewish doctrine as interpreted by Orthodox Judaism) only a child of a Jewish mother (by birth or Orthodox conversion) is deemed Jewish, and therefore will be given priority in admission. M's mother was not born Jewish and her conversion was not Orthodox (but Masorti, a non-orthodox stream of Judaism) and therefore he was denied admission.
The Jewish Free School is a voluntary aided school under the Schools Standards and Framework Act 1998. It is publicly funded and has been designated by the Secretary of State, under the Act, as a Jewish faith school. As a faith school it is exempt from the prohibition of discrimination on grounds of religion or belief contained in section 50(1)(a) of the Equality Act 2006. However, faith schools are not exempt from prohibitions of race discrimination under the Race Relations Act 1976. Racial grounds include, under that Act, ethnic and national origins.
The Court of Appeal [2009] EWCA Civ 626, [2009] 4 All E.R. 375, allowing an appeal on this matter, had decided that the school's requirement that the mother of the student be Jewish by birth or Orthodox conversion, is impermissible discrimination on the grounds of ethnicity. The Court of Appeal determined that as Jews are an ethnic group (this was undisputed by all parties), a criterion which excluded M based on the fact that his mother was not Jewish is exclusion based on a racial criterion. The policy therefore constitutes direct discrimination contrary to the Act, as it treats M less favourably based on a prohibited criterion. Alternatively, the Court decided, there was indirect discrimination, as there is no saving legitimate justification which is not the prohibited ground itself.
The Supreme Court dismissed the appeal by a majority. Five judges determined that direct discrimination had taken place (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke). Two judges found indirect discrimination (Lord Hope and Lord Walker). Two judges (Lords Rodger and Brown) saw no discrimination and would have reversed the Court of Appeal's decision.
The majority judges, in separate opinions, follow essentially the same approach. M was discriminated against because his mother was of Italian and Roman Catholic origin, that is, based on the ethnicity of his mother. That he would not have been so treated had his mother converted through an Orthodox conversion made no difference to this legal conclusion.
Lord Hope (with whom Lord Walker agreed) viewed the discrimination as religious, not racial, as it was based on a criterion of Jewish law. This might still constitute indirect racial discrimination because the religious criterion results in disparate racial impact. Lord Hope determined that there was a legitimate aim for the religious criteria, upholding education according to the tenets of the Orthodox Jewish faith. However, it was not proportional as the school did not consider less discriminatory means, such as taking in some children recognized as Jewish by non-Orthodox branches of Judaism. Therefore there was indirect racial discrimination.
Lord Rodger, with whom Lord Brown agreed, determined that the criterion for admission was not one of ethnicity. It did not matter to the school what M's mother's ethnicity was, it mattered whether she converted in an Orthodox conversion to Judaism or not. Lord Rodger also dismissed the indirect discrimination claim. He determined that the criterion of admission is proportionate to achieving a legitimate aim (education according to the tenets of Orthodox Judaism).
The majority decision that the admission criterion constitutes racial discrimination seems convincing. The admission criterion is ethnic, it does not matter that it also a religious criterion. It also does not matter that it is open to anyone of a non-Jewish ethnicity to convert to Judaism. That is a requirement not faced by someone of Jewish birth.
The decision in this case achieves a welcome result. The student, who defines himself as Jewish and whose family views itself as Jewish, should not be excluded from the school due to an institutional definition of membership of the religion. If a student views himself or herself as belonging to a religion, a state-funded school should not be permitted to exclude them.
It could be asked whether this approach does not undermine the autonomy of religious schools, the rationale behind the funding of separate faith schools. It does not. The right, under the European Convention of Human Rights (Protocol 1 Article 2) is given to the parents to choose education in conformity with their views, not to the religious community and its institutions.
Indeed, without this protection followers of non-dominant streams within the faith will find themselves excluded from the school of their faith. (As happened in this case to followers of the Masorti Judaism, a non-Orthodox Stream of Judaism). However, the JFS decision results in differential treatment of Jewish schools as compared with other faith schools. This point, indeed, was raised by Lord Rodger in dissent. But this observation should not lead to a different legal outcome in this case. It is not that the discrimination practised by JFS should be permissible, but rather that the law should be changed so that no discrimination would be permissible by schools of other faiths. In Judaism, membership is defined through ethnicity rather than through faith. The decision means that the school cannot give priority to members of the Jewish religion as it defines them. In other religions, membership is not defined through ethnicity but through faith. Other schools (for instance, Catholic schools) are able, under existing law, to give priority admission to members as it defines them and exclude others. But, surely, the conclusion should not be that Jewish faith schools should not be exempt from discrimination, but rather that other faith schools should not be allowed to discriminate on religious as well as racial grounds. This will require a review of existing legislation, but that is the way to protect the right of students to study in a school in conformity with their beliefs. This is the right which the state must protect.
