JFS Questions and (some) Answers

By Simon Rocker, July 9, 2009

What did the court say?

The Court of Appeal ruled that it was against the Race Relations Act for Jewish schools to select pupils according to whether a parent was Jewish or not.

The case had been brought on behalf of a boy who was rejected by JFS in north London two years ago because his mother had been converted by a non-Orthodox rabbi and was not considered Jewish by the Office of the Chief Rabbi.
Under the law, schools can give places on the basis of religion, but not of race. JFS argued that its decision to refuse a place to the boy was religiously motivated.
However, the court ruled that taking into account the parent’s descent was a matter of ethnic origin — Jews are considered an ethnic, as well as religious, group — and therefore unlawful.

What will happen now?
JFS governors plan to appeal against the ruling to the House of Lords. The Board of Deputies is also considering joining the legal action as an “intervening party” which means it would be able to make submissions to the court. The Board says: “We believe that the Jewish community, and not the civil courts, should be the arbiters of these issues. Ours should not be the only community that is not entitled to determine its own criteria for its own membership.”

Are all Jewish schools affected by the ruling?
Many certainly will be — regardless of whether they are Orthodox or Progressive.

They will have to rewrite their entry rules if children are admitted at the moment on the basis of parental lineage. Instead, they will have to introduce rules based on belief and practice similar to Christian schools which require church attendance.

So what is wrong with a faith-based entry test?
The Board describes faith tests as “a clearly retrograde step”. It says: “Children of a Jewish parent or parents who are not practising will be at a disadvantage in applications to Jewish schools.” Families, for example, who rarely go to synagogue and keep few rituals but still identify with Jewish ethics, such as giving charity, could find it harder to prove their religious credentials for school entry. The situation could lead to a situation where “Jewish families may either have to feign religious observance or be denied the chance to give their children a Jewish education,” says the Board.

Governing bodies are currently considering how to draw up faith-based application rules. One option is to follow the example of Catholic schools where a family obtains a certificate from the local priest testifying to religious practice. But if an Orthodox school sets synagogue attendance as an entry criterion, it would be unable to reject the child of a non-Orthodox convert who regularly attends a Reform synagogue.

Couldn’t shul membership determine entry?
There are two problems with this. First, this would rule out families who are not synagogue members: Jewish schools are seen as a way of drawing them into the Jewish community. Secondly, it might still pose legal problems. According to the Board, “synagogue membership, while unaffected in itself, will not be a permissible determinant in deciding admission because this itself tends to rely on Jewish parentage. This approach will adversely affect children with one or both Jewish parents who are not practising Jews.” If parents are members of a synagogue but hardly ever go, they might find it hard to get through a practice test.

Does this only affect state-aided schools?
No, it applies to independent schools as well. However, since there are certain exemptions for charities under the Race Relations Act, it could be that independent schools which are charities may escape the effects of the ruling. One for the lawyers to decide.

Does the ruling hit other Jewish institutions?
Still to be determined. According to the Board, synagogues and welfare services should not be affected because of the exemptions for charities. However, not everyone is so sure and it has been suggested that Jewish nursing homes on state funding, for example, could find themselves under pressure to adopt broader policies.

What happens with school entry this september?
l The big question. The Court of Appeal has, at the time of going to press, still to issue its order. If the law takes immediate effect, children whose mothers are non-Orthodox converts, and who were rejected by an Orthodox school this year, may still be able to appeal to the school — or sue for damages.

Jewish schools want to know if they will have to rewrite their admissions policies over the summer in time for children applying for September 2010.

If the House of Lords agrees to hear JFS’s appeal, it could decide to suspend the effect of the Court of Appeal’s ruling until after its own judgment. But the Lords go into recess from the end of July to October — which will make it hard for Jewish schools trying to advise parents who have to put in applications for their children in autumn.
How much has all this cost?

JFS isn’t revealing the sum it has spent, but the United Synagogue, which is the school’s foundation body, says it has so far spent £150,000 on the case. A further appeal to the Lords will involve even more expenditure.

Last updated: 1:13pm, July 10 2009