Supreme Court blow for Jewish school's admission policy

The Supreme Court has ruled that a Jewish school was guilty of direct race discrimination when it refused to admit a boy it considered to be not ethnically Jewish.

The JFS (formerly the Jews' Free School), an extremely popular school, had adopted as its oversubscription policy an approach giving precedence to children recognised as Jewish by the Office of the Chief Rabbi (OCR). The OCR only recognises someone as Jewish if they are descended in the matrilineal line from someone the OCR would recognise as Jewish, or they have undertaken a qualifying course of Orthodox conversion.

The father was recognised by the OCR as Jewish but the mother – who was of Italian and Catholic origin but had converted to Judaism through a non-Orthodox synagogue – was not. The father then challenged the school's admission policy on the basis that it was contrary to section 1(1)(a) of the Race Relations Act 1976, or alternatively that the policy was indirectly discriminatory.

The High Court had ruled in favour of the JFS, but that decision was reversed by the Court of Appeal. The Supreme Court – by a narrow margin (5-4) – backed the Appeal Court on the direct discrimination issue. Two of the judges in the minority would also have rejected the appeal on the basis that the admissions policy was indirectly discriminatory as the school had failed to demonstrate that its policy was proportionate. Only two judges – Lords Roger and Brown – would have allowed the appeal in its entirety.

The judges in the majority said the judgement “should not be read as criticising the admissions policy of JFS on moral grounds or suggesting that any party to the case could be considered 'racist' in the commonly understood, pejorative sense. The simple legal question to be determined was whether in being denied admission to JFS, [the boy] was disadvantages on grounds of his ethnic origins (or lack thereof).”

Lord Phillips said that the test of matrilineal descent adopted by the JFS and the OCR was one of ethnic origins and so contrary to the 1976 Act.