British court upholds ruling on Jewishness

December 17, 2009
British Court Upholds Ruling on Jewishness
By SARAH LYALL

LONDON — Britain’s highest court declared on 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, referring to the admissions criteria for the school, JFS. “By definition, discrimination that is based upon that test is discrimination on racial grounds.”

The decision brings to an end a case that has exposed deep divisions among Britain’s 300,000 Jews and forced the secular legal system to intervene in a religious question deep 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 JFS, formerly the Jews’ Free School, one of Britain’s best-performing Jewish secondary schools. Although it is state-financed, JFS, in North London, is allowed by law to give preference to Jewish applicants.

But its definition of Jewishness is a strict one, defined by Britain’s Chief Rabbi, an Orthodox Jew. Though M is an observant Jew whose father is Jewish and whose mother is a Jewish convert, he was not considered a Jew by the school because his mother converted in a progressive, not an Orthodox, synagogue.

M sued JFS. He lost, but that decision was overturned by the Court of Appeal last summer. The school’s appeal of that ruling 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, JFS said it had preferred its Orthodox-based test of Jewishness to its current policy, which it said was based on “a series of factors that 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 be not. Five of the nine Supreme Court judges who heard it ruled that JFS’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.

The case has been debated up and down in the Jewish community here. 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.

“The commission believed that it had to intervene in order to preserve the same protection against racial discrimination for Jews as for anyone else,” Trevor Phillips, chairman of the rights commission, said in a statement. “The decision of the court achieves that end; and it confirms that no school will be allowed to discriminate based on the ethnic origin of an individual.”

Many Jews of all denominations deplored the fact that the matter had even come to court, saying that it should have been handled internally. But critics of the chief rabbi and of JFS’s admissions policy said they nonetheless welcomed the chance to make the school more representative of the broader Jewish population.

David Lightman, an alumnus of JFS 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 its old admissions policy was narrow-minded and divisive.

His wife is the head of the school’s English department, he said; his daughter teaches Hebrew classes. Why, he asked, should they be considered less Jewish than a non-believing atheist, say, 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, representing Judaism as well as the Church of England, Catholicism and Islam, among others. The ruling will have repercussions for all the country’s Jewish schools, whether private or public, and may also affect the admissions policies of Sikh and Muslim schools.

Several of the judges said that that perhaps the law itself should be amended to allow religious schools to use ethnic criteria in admitting students. And they went out of their way to assert that JFS 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 national law.