For months, Europe’s biggest Jewish school has been waiting for a court ruling that could affect its very ethos. Last week, JFS staff, governors and pupils — not to mention their parents — finally learned what a High Court judge thought of a claim that its admissions policy racially discriminated against the son of a convert.
The judge, Mr Justice Munby, rejected the claim in a case which has implications both in and out of the community — and which is not over yet.
The case was brought by a man known in court only as E, on behalf of his son, referred to as M. In 2006, E and his wife applied for a place in the school for M, to start in September 2007. The school asked about M’s mother, originally a Roman Catholic who had undergone a conversion by a Progressive minister.
E objected, but was told in April 2007 that M could not be offered a place as the school was oversubscribed with applicants who were halachically Jewish according to the Office of the Chief Rabbi (OCR). E applied to the school’s appeals panel, but they dismissed his appeal in June last year. So he asked the Office of the Schools Adjudicator, which oversees school admissions, to review the panel’s decision.
In November, the adjudicator also rejected E’s contention that the school discriminated against his son, and that it had breached the School Admissions Code. However, the adjudicator did tell the school to remove parts of its under-subscription criteria that would have offered places to children with one Jewish parent, which he felt could be indirectly discriminatory.
E then decided to seek a judicial review. In a four-day hearing in March, in which he was represented by Dinah Rose QC, Mr Justice Munby heard the case, reserving his judgment until last week. The United Synagogue appeared at the hearing as an Intervener to represent the views of the OCR.
In his view, Mr Justice Munby said the admissions policy “was not materially different from that which gives preference in admission to a Muslim school to those who were born Muslim, or preference in admission to a Catholic school to those who have been baptised. But no-one suggests that such policies, whatever their differential impact on different applicants, are other than a proportionate and lawful means of achieving a legitimate end.”
He said that giving preference to children who were Jewish was “essential” if it was to fulfil its aim of being an Orthodox school.
If the judge had decided in favour of E, it would have had implications for “the admission arrangements in a very large number of faith schools of many different faiths and denominations”.
E has remained anonymous and, until now, refused all requests for interviews. Breaking his silence, he said in a statement through his solicitor this week: “The outcome was disappointing to us, as it will be for many other Jewish parents and synagogues whose children continue to be denied admission to a school that was established with public funds for, and publicly claims to welcome, the whole Jewish community.
“I believe the school’s policy to be discriminatory and that its application is unjust. I am sorry that the decision appears to have been affected by the argument that it would otherwise render unlawful the admission arrangements of a number of faith-based schools, even though the law clearly requires their admissions to be faith- rather than ethnically or racially based.”
One significant side effect of the case has been the cost for the parties involved. Defending the case has cost JFS around £100,000, and its chair of governors, Russell Kett, said this week that the school would be affected. “I would hope that any curtailment of projects is only short-term.
“It may well be that we will be looking at charitable donations in order to put the school back in funds to the extent that we are out of funds. That is the direction in which I am looking.”
On the case generally, he said he was “beyond anger”. “I was angry when it first started. But I have been disappointed that the resources of so many institutions have to be directed towards defending these allegations, not only in monetary terms but also in terms of time.
“The distraction this causes takes people’s eyes off other important balls. I find it hugely disappointing that someone could see fit to bring this case to a court of law.
“We would be entitled to be challenged if we did not apply our admissions policy as laid down each year. Otherwise arbitrary decisions could be made, and if you do that you destroy completely the integrity of the school. We have applied our admissions policy rigorously because that is the basis on which we have to move forward.”
Mr Kett conceded that if prophecies that there will be too many places in Jewish secondary schools come to fruition, someone such as E’s son could be given a place.
The United Synagogue said that when budgeting is done, “there will be a hole of about £100,000”.
A spokesman said: “We have no intention of increasing synagogue fees. However, there will be less contingency money and less for general purposes to spend on education programmes and other services that we would very much like to have continued funding.”
While JFS and the US welcomed the judgment, Rabbi Tony Bayfield, head of the Movement for Reform Judaism, was less optimistic. He said: “On the one hand, the verdict was very unhelpful to the child concerned. Equally, the judgment explicitly pointed out that JFS was a completely independent asset of the whole community until 1957, when it was hijacked by the Chief Rabbinate and the United Synagogue.
“This was why the Reform Movement has long taken the view that, rather than fight battles which may be unwinnable, it was far better to participate in the creation of new and genuinely cross-communal institutions such as the Jewish Community Secondary School (JCoSS).
“However, the judgment did vindicate the community’s right to define Jewish status in our own way, that is, as a matter of birth or conversion, and though that is different from the way Christianity defines Christians, the judge declared that it wasn’t racist but religious.
“Moreover, the judge was very clear about the undesirability of state interference in Jewish communal affairs. The conclusion of my submission to the court has been upheld: that the OCR policy with regard to admission to JFS was strategically wrong, ‘politically’ motivated, not in the interests either of the community or the family concerned and unjust.”
The origins of the case go back three-and-a-half years, when a brief letter from a rabbi to JFS saying that the mother of a boy who sought a place was not recognised as Jewish by the London Beth Din started a train of events that has reverberated throughout Anglo-Jewry.
The woman in question, Helen Sagal, had converted to Judaism in 1990 under Israel’s Sephardi Beth Din and married her Israeli husband, Raoul, in an Orthodox synagogue in Tel Aviv. They wanted their son, Guy, to have a Jewish education.
Rabbi Julian Schindler was then director of the United Synagogue marriage authorisation office. A copy of his letter rejecting their application was sent by the school to Mr and Mrs Sagal in December 2004.
On the surface this row was about places in a Jewish school. But beneath it there was a much deeper and more searching question: who is a Jew?
The JC broke the story in April 2005, by which time the Sagals had met Dayan Menachem Gelley, now head of the London Beth Din, who rejected Mrs Sagal’s conversion because of the “level of commitment and observance to Orthodox Jewish practice at the time of your conversion”.
After a compromise proposal from Chief Rabbi Sir Jonathan Sacks — that Guy should be considered halachically Jewish and given a JFS place with other matters left in abeyance — was rejected by both the Sagals and the Chief Rabbi’s own dayanim, the couple met Rabbi Sacks and the Beth Din but again to no avail. Ironically, Guy eventually went to Christ’s College — where the Chief Rabbi had once been a pupil.
The extensive publicity generated by Mrs Sagal’s case brought another couple to the fore with a story that was similar but had its own difficulties.
David and Kate Lightman applied to send their daughter Maya to JFS. Mr Lightman and his sister had been pupils there and Mrs Lightman is the school’s head of English.
Mrs Lightman had an Orthodox conversion to Judaism in Israel in 1987 and married Mr Lightman in 1988. But Mr Lightman is a Cohen — a priest. They are forbidden to marry converts.
The then Rabbi Sacks, minister of Golders Green Synagogue, refused to marry them but told Mr Lightman’s father they could be married in an Orthodox synagogue if they could find an Orthodox rabbi willing to do so. They did, in New York. Any children of that marriage would be Jewish if their mother had an Orthodox conversion, though any son could not be a Cohen.
The couple hit their first hurdle when their first child, a son, was born and they wanted a brit milah (circumcision). The Beth Din refused, saying that as Mrs Lightman had entered a “forbidden” marriage so soon after her conversion, she had not converted with sincerity and therefore the religious court did not recognise her conversion.
They found the Beth Din no less forgiving when they applied for a place at JFS. The couple complained to the Office of the Schools Adjudicator about JFS’s admissions policy, along with E, who brought this High Court action.
From Mr Justice Munby’s ruling:
The history of the dispute
E [the father] wishes M [the son] to be educated at JFS. The dispute which has given rise to the present litigation arises in circumstances where, as E realistically accepts, it would be futile for him to seek the Office of the Chief Rabbi’s recognition of M’s Jewish status.
Objections to the admissions policy: direct race discrimination
The simple fact, in my judgment, is that JFS’s admissions policy is, as the Schools Adjudicator correctly found, based on religious and not on racial (ethnic) grounds, reflecting, as it does, a religious and not an ethnic view as to who, in the eyes of the OCR and JFS, is or is not a Jew. Such an analysis fits comfortably within the distinction... between actions by or in relation to Jews based on religious grounds and actions by or in relation to Jews based on racial (ethnic) grounds... The cause of a non-Orthodox applicant failing to meet JFS’s admission requirements can only be described as a religious cause, that is, the Jewish religious laws as described by Dayan Gelley and Registrar Frei. I agree.
Objections to the admissions policy: indirect race discrimination
I have to say that the aim or objective of JFS, as spelt out in the materials from which I have already quoted at some length, is clear enough: it is to educate those who, in the eyes of the OCR, are Jewish, irrespective of their religious beliefs, practices or observances, in a school whose culture and ethos is that of Orthodox Judaism.
That, as I read his decision, is what the Schools Adjudicator found, and in my judgment he was right to do so. That is JFS’s aim or objective and that, in my judgment, is in principle an entirely legitimate aim meeting a real need.
If... it is legitimate for a Muslim school to give preference to those who are born Muslim, or for a Catholic school to give preference to those who have been baptised, even if they have fallen away from the faith, with the aim of educating them in an appropriate religious ethos... then why should it not be equally legitimate for a school like JFS to give preference to those whom it treats as Jews even if they have fallen away from or have never known the faith?
£100,000
Cost to JFS
£100,000
Cost to United Synagogue
£0
“E” is on legal aid