| SPOTLIGHT |
Faith schools will be closely watching the Supreme Court’s decision in JFS, which is expected before the end of the year. Rachel Logan explains what it involves.
There has been much concern over the perceived implications of the Court of Appeal’s judgment in E, R (on the application of) v Governing Body of JF & Ors [2009] EWCA Civ 626 for the admissions practices of faith schools. This article attempts to dispel some of those concerns.
Should the judgment be upheld by the Supreme Court, it will plainly have an impact on any school of any faith which operates oversubscription criteria based on membership of an ethnic group, regardless of theological motivation. The Court of Appeal judgment does not prevent faith schools from allocating places based on membership of the faith, unless the test for membership is itself a test of ethnicity. Regardless of whether the judgment is upheld, however, there is and will remain an obligation on all faith schools to ensure that any indirectly racially discriminatory effects of their faith-based criteria are a proportionate means of meeting a legitimate aim. The general duties of responsible bodies are thus unaffected.
School admissions
Designated faith schools are exempted from the prohibition against religious discrimination in admission arrangements by s.50 of the Equality Act 2006. This does not permit them to discriminate on any other grounds – indeed the school admissions code explicitly reminds readers that faith-based oversubscription criteria must be framed so as not to conflict with other legislation, including the Race Relations Act 1976 (which prohibits discrimination on racial grounds in admission requirements in s.17 RRA). It also does not affect a governing body’s fundamental duty to have due regard to the need to eliminate unlawful racial discrimination and promote equality of opportunity (s.71 RRA).
The particular controversy at JFS
The particular oversubscription criteria at JFS were controversial because rather than basing admission on an assessment of religious self-definition or practice, children had to show they were recognised as being Jewish by the Office of the Chief Rabbi (OCR) or had begun an OCR-recognised individual conversion course. The OCR recognises as Jewish only approved converts, or those of Jewish descent in the maternal line. JFS thus admitted children irrespective of whether they actually shared the Jewish faith provided they were matrilineally Jewish. An atheist could attend so long as his mother was born a Jew.
The challenge in this case came from a child in the opposite position. He and his father were practising religious Jews, yet he was refused admission because the OCR did not recognise his mother’s conversion to Judaism as valid. In the eyes of the OCR, she was not a Jew and therefore her child was also not a Jew.
The Court of Appeal’s decision
No one disputed that Jews are an ethnic group as well as a religious one. Discrimination against Jews is thus also discrimination on racial grounds (although JFS sought to distinguish between religious and racial motivations for such discrimination). The Court of Appeal found that as such, “to discriminate against a person on the ground that he or someone else either is or is not Jewish is to discriminate against him on racial grounds”. M had been refused admission because he was not regarded as Jewish. Any theological motivation for that less favourable treatment was deemed irrelevant. The admissions policy thus resulted in unlawful direct discrimination on racial grounds. The school’s position, that this was a religious not racial policy and the court should not scrutinise how membership of the Jewish faith was determined, was rejected.
The court further determined that even if this was wrong, the criteria led to unjustified indirect racial discrimination. Both parties agreed that the policy was indirectly discriminatory in that it would have an adverse and disparate effect on those children not regarded as racially Jewish. The court agreed with the appellant that the purpose or effect of the policy was to make an ethnic distinction and this could not be part of a legitimate aim capable of justification.
The appeal against that judgment was heard between 27-29 November 2009 by a nine-judge panel of the Supreme Court. A decision is likely before the end of the year.
Implications
If the Supreme Court agrees that the criteria at JFS were directly discriminatory on racial grounds, then the consequences are clear. Jewish schools will not be able only to admit Jews as OCR-recognised, because the criterion is deemed an ethnic one. It has not been said that membership criteria are inherently objectionable, so long as they are based on the child or parent’s own religious adherence or self-identity. Existing Sikh schools (Sikhs being also an ethnic group) currently have faith and practice-based criteria which will not be affected. Similarly, every faith school will have to ensure admissions criteria are genuinely directed at assessing faith. If they are, there will be no knock-on effect. The Secretary of State highlighted concerns for Catholic schools which use baptism as a means of assessing membership. It should be noted that firstly, most Catholic schools also assess religious practice as part of their admissions decisions. Secondly, baptism is an act of faith and thus it is strongly arguable that unlike maternal descent, such a criterion is not an ethnic one.
If the Supreme Court finds that this was not an ethnic test, then the question will become whether JFS can justify the indirectly racially discriminatory effects of its policy as a proportionate means of achieving a legitimate aim. This is nothing new. All responsible bodies of faith schools must have due regard to the need to promote equality of opportunity and eliminate unlawful racial discrimination. It is essential in designing any policy to consider potential indirect effect on particular racial groups and whether this is justified. Governing bodies should always be asking themselves whether they can articulate the justification for such effects and whether a less discriminatory policy would have achieved the same outcome. A balance must always be struck.
Thus, it will remain the case that faith schools must be alive to potential challenges to indirectly discriminatory criteria. Membership criteria must also clearly assess religious belief rather than ethnic origins, and the court will scrutinise any which do not.
Rachel Logan is a barrister at Matrix Chambers
