A big headache for Jewish schools


By Simon Rocker
June 25, 2009
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The Court of Appeal’s ruling today that the entry policy of JFS – and by extension, many other Jewish schools – is in breach of the Race Relations Act will come as little surprise to those who attended the three-day hearing.
But that makes it no less historic: what the court has said is that the traditional rules for deciding who is a Jew – matrilineal descent –cannot be used for deciding who can enter a Jewish school.
Almost certainly more legal action will follow: JFS is already set to appeal to the House of Lords. It might even go all the way to the European courts.
There may be pressure to change the law so that Jewish schools will be free to set entry policies according to halachah.
Meanwhile, other parents of children denied places at Jewish school because their mother was not considered halachically Jewish could bring fresh law suits.
It’s going to be a long summer for school governors – and lawyers

COMMENTS

Mark

Fri, 06/26/2009 - 14:59

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It's breathtaking. Cannot a religious institution decide for itself who qualifies as a member of that religion? Can a parent get a child into a Catholic school by simply lying and saying the child is Catholic? Can a parent get a child into a Jewish school by simply lying and saying the child is Jewish? No, each school is entitled to satisfy itself that the claim is accurate. It seems wrong to say they cannot, even where the parent is not actually lying but is merely mistaken.

Everyone who is converting (as I am) must SURELY be aware that there are two ways of doing this. Properly, or the easy way. I cannot believe the woman was ignorant of the consequences and that her children would not be formally recognised as Jewish.

It's like a university requiring that applicants have recognised academic qualifications before they join. You can do it the easy way. You can buy "qualifications" on the Internet, but they don't count and a university is entitled to reject those it deems are not good enough.

It's not that the child is not Jewish enough, it's that he's not Jewish at all. His mother did it the easy way. She might just as well have bought a certificate online for all it's worth.


anatja

Fri, 06/26/2009 - 15:29

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>I cannot believe the woman was ignorant of the consequences and that her children would not be formally recognised as Jewish.

From what I understand the mother in question had an Israeli Orthodox conversion that she felt would be valid in every way shape and form, I don't think any Orthodox conversion could be considered 'easy'. Also there was the case of the child who was refused after it was discovered that his mother (who had also undergone an Israeli Orthodox conversion) married a Kohen. Although I acknowledge that this is not permissible that fact does not invalidate the womans conversion 20 years previously nor does it affect the status of the child as a Jew.


Mark

Fri, 06/26/2009 - 16:15

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From the ruling:

"The OCR does not recognise the validity of M's mother's conversion to Judaism because it was conducted in a Progressive and not an Orthodox synagogue."

and:

"It is E's case that being a Jew, whether by descent or by conversion, is a question of ethnicity."

How can you be converted into a Jew if it is merely a matter of ethnicity? Can I convert to Chinese?


Mark

Fri, 06/26/2009 - 16:25

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Case in point, an old Jewish joke:

A Brooklyn blackhat is travelling in China. He's walking down the street early in the morning and hears davening come from a little doorway below the street. He peeks in and sees a roomful of Chinese men dressed in Tallis' and Tefillin. He walks up to the rabbi and says that he, too, would like to daven. The Chinese rabbi looks at him a long time and finally says, "Funny, you don't look Jewish."


Mark

Fri, 06/26/2009 - 22:39

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Okay, I've read the whole judgement now and I have a few questions, not being a lawyer.

The finding seems to hang on the judges deciding that the boy was not admitted on the grounds that his mother was not Jewish, and they rule that is racist.

First question. Strictly speaking he wasn't refused entry, he was simply not given priority. Had the school not been oversubscribed, he would have been admitted, end of story, no legal case to answer for. The school didn't discriminate *against* him, they just didn't discriminate *in favour* of him. Isn't that a different matter? It's all the other boys and girls who were admitted who are the problem, they shouldn't have been given priority.

Second question. Are there not schools that give priority to children depending on their parents status? Perhaps children of former pupils, or children of men or women serving abroad in the armed forces? Would it be racial discrimination if the policy of the school was to give priority to children whose parents were Jewish (in the sense that they practice Orthodox Judaism)? Thus simply sidestepping the racism issue.

Third question. Is this for real?


Jonathan Hoffman

Sun, 06/28/2009 - 08:47

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The three Appeal Court Judges said that what is sauce for the Race Relations Act goose, must be sauce for the school admissions gander: they said that Jews are correctly treated as a racial group for the purposes of the Race Relations Act but that means that a school admissions policy that relies on the Orthodox definition of Judaism (matrilineal descent or Orthodox conversion) is illegal.

From the Judgement: "It is here, as it seems to us, that the respondents' argument encounters a major problem. One of the great evils against which the successive Race Relations Acts have been directed is the evil of anti-Semitism. None of the parties to these proceedings wants or can afford to put up a case which would result in discrimination against Jews not being discrimination on racial grounds. There would have to be something wrong with such an argument. So Lord Pannick accepts, indeed insists, not only that Jews are an ethnic or racial group and not simply a theological construct, but that for all purposes except those of the Office of the Chief Rabbi (OCR) and the school, 'M' is a Jew. This is not an easy position to maintain, but its corollary, if it can be maintained, is that what excludes 'M' is not his race or ethnicity but his eligibility to be regarded in Orthodox eyes as a Jew, a matter of pure theology. "

*But there is a glaring fallacy in the Judgement.*

The definition of a Jew for the purposes of the Race Relations Act is much wider than the biblical one which the OCR and JFS have. Under the MacPherson definition of racism established by the The Stephen Lawrence Inquiry, a racist incident is any incident which is perceived to be racist by the victim or any other person. That's as it should be: imagine if the BNP could be freely racist to Jews who have converted the Liberal or Reform way but not to those who have converted the Orthodox way. Or imagine if it could be freely racist to children of a black father and a white mother but not to children with two black parents.

So the Judges are guilty of False Equivalence, no doubt in the interests of political correctness. It's an astonishing mistake to make and surely the House of Lords will overturn the decision.

But not without costing the United Synagogue (that is, its members) thousands of pounds, to add to the £150,000 it has already spent on fighting the case.....

One of the three Judges - Stephen Sedley - has previously insisted that everyone should contribute to the UK DNA databank ... because at present the racial distribution of the deposits lacks proportionality.

Again - PC Gone Mad........


Jonathan Hoffman

Sun, 06/28/2009 - 08:48

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As someone commented on Guardian CIF: Does this mean that the Black Policemen's Association (in the Metropolitan Police) is now illegal?


Jonathan Hoffman

Sun, 06/28/2009 - 09:12

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The decision is obviously terrible for relations between the Orthodox and the non-Orthodox. Two non-Orthodox Rabbis have already welcomed it. Relations had deteriorated even before this decision.

The House of Lords must reverse it - and fast.


Mark

Sun, 06/28/2009 - 10:53

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Correct. The Race Relations Act deals with discrimination of the form, "Are you the same colour as us?" or "Are you of the same racial stock?" It does not deal with matters such as "Are you of the same faith as us?"

By this definition, the Board of Deputies must be racist because presumably it also chooses it's members on the basis of whether their mothers' are Jewish or not?

Ask Judge Sedley whether the UK DNA database lacks religious proportionality as well.

If I think that Judge Sedley's parents were idiots because of the way they brought him up, am I a racist?

How many absurdities does one have to point out to prove this decision is absurd?


Jonathan Hoffman

Sun, 06/28/2009 - 13:37

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In fact it says on the website of the National Black Police Association "Membership of the NBPA is open to all in policing on application There is no bar to membership based on colour."

http://www.nbpa.co.uk/index.php?option=com_frontpage&Itemid=1

But the 'false equivalence' charge against this decision still stands. The answer to 'who is a Jew?' under the 1976 Race Relations Act is very different to the matriarchal or conversion answer.

Suppose Lord Justice Sedley was attacked in the street by a fascist because he thinks he is Jewish (as he is attacking him, he makes an antisemitic remark).

Sedley then has a case under the 1976 Act. But that is about as unrelated to the matriarchal/conversion test as it is possible to get!


OrthoPrax

Sun, 06/28/2009 - 14:05

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I think I see where the judge is coming fom on this.

Imagine to prospective pupils, Adam and Benjamin. Both eat bacon sandwiches, have Saturday jobs and turn up to a progressive synagogue once a year on Yom Kippur. Their religious practice, and that of their families, is absolutely identical. However, Adam's mother is Chinese and a progressive convert, whereas Benjamin's mother is ethnically and halachically Jewish. The basis for admitting Benjamin but not Adam is the ethnicity of his mother and NOT any religious criterion - we have seen that their religious practice is identical. The fact that the Orthodox consider Benjamin but not Adam to be jewish is irrelevant, because neither are practicing orthodox Jews.

JFS could get round this problem by stipulating that attendance at an Orthodox shul was necessary for entry.


Jonathan Hoffman

Sun, 06/28/2009 - 14:56

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In the unlikely event that the Lords lets this crazy judgement stand, you are right - there will have to be a religious practice test.

But can you only imagine the invasion of privacy that would require? Eg validating that familes keep kosher, keep the sabbath, go to shul?

There will be a new market in sabbath-observant clocking-in machines, to be installed at all shuls for proof of synagogue attendance, to JFS. And Jews will have to carry a card to be signed by the kosher butcher every time they buy £10 worth of kosher meat.

And will attendance at non-Orthodox synagogues count equally to Orthodox? If not, what will be the 'rate of exchange'?

Is this *really* what Lord Justice Sedley wants??


Mark

Sun, 06/28/2009 - 15:19

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No, no, no. We don't need cards and clocking-in machines, a simple badge or lapel pin indicating ones religious status would suffice, I don't now, I'm thinking maybe a Star of David sewn on ones clothing would work.

Is this absurd enough for anyone yet? This is an absurd ruling.


Jonathan Hoffman

Sun, 06/28/2009 - 16:16

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Welcome to the JFS Admission Points card. Get it stamped by your Rabbi (preferably Orthodox), the kosher butcher and the kosher baker. Points deducted if the Religious Police see you at Spurs or Arsenal on the Sabbath. Double points for an aliya.

The 150 families with the most points each year win the right to send one child to JFS.

The top family wins the Sedley Prize.

You don't have to be Jewish to enter.


Jonathan Hoffman

Mon, 06/29/2009 - 05:26

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If Jews were not regarded as a 'race' by the 1976 Act, this Judgement would not have been possible.

That shows how misplaced it is. It turns against Jews the fact that they ARE regarded as a 'race' by the 1976 Act.

It is using the law in a way that Parliament never intended.


Simon Rocker

Mon, 06/29/2009 - 09:31

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Anatja- "the mother in question had an Israeli Orthodox conversion"

No, that's another story! In this case, the mother was converted by a Progressive rabbi. The boy and his father belong to a Masorti shul.

Orthoprax "JFS could get round this problem by stipulating that attendance at an Orthodox shul was necessary for entry"

True, but the problem is that this kind of entry policy would make it more difficult for secular, non-synagogue-going Jews and in particular Israelis, to enter the school. And thus remove an avenue of Jewish education for many who might not otherwise receive it


Robert

Fri, 07/03/2009 - 14:32

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Orthoprax: the example that you give about Benjamin and Adam is flawed. Let us imagine that Benjamin's mother was also of Chinese descent but underwent an orthodox conversion. In such a case Benjamin would be entitled to a place in the school whereas Adam would still be excluded. Both boys have identical racial backgrounds (their mothers are both Chinese) and yet one would be accepted and the other not. This example highlights that the difference between the two boys would be purely on religious grounds (due to the authenticity of their conversion) rather than racial discrimination.


OrthoPrax

Fri, 07/03/2009 - 14:37

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With respect, Robert, my example is not flawed.

The example I provided shows a case where discrimination was on purely ethnic grounds, which is illegal.

Your example shows a case where discrimination is on purely religious grounds, which is not illegal.

The argument is not that JFS admissions are *always* racist, but that they *sometimes* are. Your example thus adds nothing to the argument.


OrthoPrax

Fri, 07/03/2009 - 14:38

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double post


Robert

Fri, 07/03/2009 - 16:34

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Orthoprax: You are correct that if the reason for the child being refused entry was simply as a result of his mother being from a Chinese background that this would be a racist matter.

However, my point was that your example showed two differences between each of the boys: (1) one had a Jewish mother under orthodox Jewish law and the other did not have a Jewish mother under orthodox Jewish law AND (2) one had an "ethnically Jewish" mother whereas the other did not.

You seem to indicate that the school's entry criteria is based on the ethnicity of the mother (just because she is chinese). I agrued that if the chinese mother was halachically Jewish, her child would be allowed into the school, which again indicates that the criteria is simply a matter of religious law and has nothing to do with the child's ethnic origins.

As a religion, Judaism is quite ethnically diverse - Ashkenasi, Sefardi as well as converts from around the globe. There is no suggestion that a child would be refused entry because of the colour of his (or his parents' skin).


MalcolmW

Sat, 07/04/2009 - 16:13

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Would 'M' have been admitted to German 'Public School' under the Laws of the 3rd Reich?

http://www.ushmm.org/wlc/article.php?lang=en&ModuleId=10005681


austin

Sun, 07/05/2009 - 09:21

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what difference does that make? Germans do not decide who is a Jew.


anatja

Sun, 07/05/2009 - 11:29

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>>Anatja- "the mother in question had an Israeli Orthodox conversion"

No, that's another story! In this case, the mother was converted by a Progressive rabbi. The boy and his father belong to a Masorti shul.

Aaah, thank you for the clarification, I have read that now. What about the Orthodox convert who married a Kohen then? How could her child's status be suspect just because their marriage was not allowed? Surely the child is still Jewish?


MalcolmW

Sun, 07/05/2009 - 19:46

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Sorry austin, the Nazi's did decide who was a Jew. No distinction was made on the basis of Orthodoxy. 'M' would have qualified for a gas chamber!


greenspecs

Wed, 07/08/2009 - 09:57

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Robert
"I agrued that if the chinese mother was halachically Jewish, her child would be allowed into the school, ..."

Fair enough. The problem lies with "halachically". Sadly, there is no consistency - even amongst the 'orthodox' rabbinate world-wide - as to what this means. There seems to be a race to outdo one another along the lines of 'my conversion is more halachic than yours'. See here for an example: ...http://www.ynetnews.com/articles/0,7340,L-3735694,00.html

In fact the OCR sets its own rules - rather like an exclusive club


greenspecs

Wed, 07/08/2009 - 09:59

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The judgement is correct. On 6/4/1969 the UK ratified United Nations General Assembly Resolution 2106 of 21st December 1965, Part 1, Article 1 which includes the following:
“The term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent (my emphasis), or national or ethnic origin which has the purpose or effect of nullifying or impairing recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

The problem with using descent as a key element in Jewish school acceptance criteria, and hence in this case, is that it also exposes logical flaws in tradition and practice. There is a much deeper problem too.

The logic flaws can be illustrated by example.
Suppose a woman converts in a ‘non-accepted by the ORC’ way, marries a Jew who is unconcerned about the provenance of her conversion and has a child. Suppose then, that due to prevailing political circumstances, the family is attacked; the father and very young child manage to flee but the mother is killed. The father gets to a safe haven in the UK and brings the child up in a ‘properly’ Jewish way. Coming to eg JFS, the father has no idea of how the mother converted, but to all intents and purposes (to the ‘man on the Clapham omnibus’) both father and child are observant Jews. Is the child admitted?
In another example … what is the position of a child whose ‘properly’ Jewish parents who, by force of circumstances, are compelled to bring him or her up in an entirely non Jewish way and who then come to UK seeking a place at eg JFS. The parents are ‘properly’ Jewish but to all intents and purposes (to the ‘man on the Clapham omnibus’) the child is not. Is the child admitted?

The deeper problem lies in the whole question of descent. Let’s not forget that ‘Jewish descent’ has been the core of the actions of some very evil people, we would unquestionably call racist.

Even tracing descent can cause problems. If the mother must be ‘properly’ Jewish, then logically so must her mother and so on back the matrilineal line. How far back do we go? 5 generations? Why not 10? Why not 100? Logically the matrilineal requirement cannot have a boundary set on it, otherwise the whole argument fails. In this case who is there amongst us who can claim with absolute certainty that their maternal line is verifiably ‘properly’ Jewish, particularly given the turbulent history of Jews over the last millennium or more. I would hazard that even our Chief Rabbi cannot.

In truth, any ‘faith’ school is going to have the problem of defining who fulfils their criteria of ‘sufficiently religious’. Any rule can be challenged, as in this case. The most reliable way can only be by observation … do the parents seem (to the ‘man on the Clapham omnibus’) to have the right degree of faith to fit in?


kenneth herman

Wed, 07/08/2009 - 14:36

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Back in the 1960s I lived very close to the North West London Jewish school, I worked for a Kosher butcher and despite my wife having converted by way of the Liberal movement we kept a strictly kosher home and attended synagogue as frequently as our circle of Jewish friends and family.
Living in the same block of flats was a Jewish girl married to a non Jewish husband and who declared herself a committed atheist. Her young son was admitted to the school without question "his mother was Jewish" my young daughter was rejected out of hand.
Where pray, was the sense or justice in this?
Incidentally my wife before our marriage had been rejected by the Beth Din on the grounds that I was not sufficiently observant.


jaymor

Wed, 07/08/2009 - 18:11

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The fundamental fallacy of the Chief Rabbi's position is his assertion that membership in our tribe is based on religious belief. It is not. One is automatically a member of our tribe if one's mother was a member. One cannot join the tribe from outside without overcoming huge barriers to entry.

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