By Andrew Sanger
July 12, 2009
The Appeal Court has no interest in how Jewishness is defined. Nor did the court say we are racists, as some people seem to think. We are perfectly free, as always, to define a person as Jewish on the basis that his or her mother is Jewish (circular as that logic may be).
The ruling clearly states (in paragraph 19) that the judges “are in no way concerned with the beliefs which underpin these categories” [ie. Jews and converts] and “Nor therefore are we concerned with the merits of the non-recognition by the school of the validity of the conversion of M's mother.” The judges’ conclusion also makes clear that, in effect, you can believe what you like about who is a Jew but you can’t practise racial discrimination. (You can read the judgment for yourself at http://www.bailii.org/ew/cases/EWCA/Civ/2009/626.html)
I am surprised that this point has been so misunderstood – deliberately? – by commentators in the Jewish press.
The Appeal Court dealing with the case of "M" concerned itself only with the admissions criteria of an English state school. The case was brought under the Race Relations Act. It is clear that under that Act, one may not refuse a child admission to a school on the basis of their mother (or father or anyone else) belonging to this, that or the other racial group.
While the word 'race' may seem inappropriate today, and strikes an unpleasant note in Jewish ears, the use of the word in the Act is similar to 'ethnic group'. It encompasses shared heritage and religion, and it is clear that under the Act, Jews are indeed a racial group.
Those who object to this should bear in mind that Jews have benefited enormously from the Act. Discrimination against Jews in British workplaces, clubs and restaurants has in fact been almost brought to an end by its protection.
Arguments that the mother’s ethnicity is integral to Jewishness are beside the point, because the case was not about whether the child M was Jewish. It was only about the admissions criteria of the school of his choice.
Those who respond that Jews are of many races, and that children at JFS come from every race, are confusing “race” as used in the Act with “race” as popularly used today – a narrower genetic definition based on physical traits like skin colour. Indeed, the Act specifically states that a racial group (like Jews) can contain diverse racial characteristics.
The truth is, the JFS deserves this judgement, and has brought all its woes upon itself by rejecting sincere converts over the years. Until the 1950s, there was no “halacha test” to attend the school. If parents identified themselves as Jewish by religion, and wanted their child to be educated under Orthodox Jewish auspices, then the child was eligible to attend JFS.
That way lies communal unity and the opportunity for all children identifying as Jewish to practise and learn about traditional Judaism.
That is the situation that should prevail again today. A “faith” school – especially state-funded, as JFS is – should be defined by the type of education it offers, not by the type of children who may attend.