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BySimon Rocker, BY simon rocker
After a housing association was challenged for only accommodating Charedi families, the court agreed this week some forms of positive discrimination can be justified
October 22, 2020 10:02The Supreme Court’s ruling on the Agudas Israel Housing Association will be greeted with relief within the Jewish community and beyond. For had the decision gone against it, charities set up to aid a particular faith or ethnic group might have been prevented in future from exclusively serving it.
No one will forget the Supreme Court ruling against JFS 11 years ago which forced Jewish schools to rewrite their admissions policies and showed that anti-discrimination law could have unanticipated effects.
AIHA was established in 1986 to provide social housing for the growing Charedi population. Run by the redoubtable Ita Symons, it mainly works in Hackney, though it has bought properties more recently in the new community of Canvey Island.
Its 470 properties in Hackney represent one per cent of social housing in the North London borough overall, catering in particular for families that need space for a large number of children. Applicants can put their name down through a portal operated by Hackney Council.
But AIHA and Hackney’s policy was challenged by a single mother with four young children who was not from the Charedi community and who had been identified by the council as a priority case for housing. She complained after a number of AIHA places were allocated to Orthodox Jews ahead of her. She is now housed in suitable accommodation.
In the original hearing, the High Court was told that Charedi Jews could face discrimination when trying to rent private housing because of their appearance. Their experience of antisemitism also led them to seek the security of living closer together.
In addition, the Charedi community was more likely to experience poverty and deprivation than other “mainstream” Jews and a quarter lived in overcrowded conditions.
AIHA also took into account their religious requirements such as Shabbat locks on the estate.
The Supreme Court agreed that charities were entitled to restrict their activities to a particular group if it helped to remedy social disadvantage — in other words, a form of positive discrimination can be justified.
In his written judgment for the Supreme Court, Lord Sales also noted that “AIHA’s allocation policy operates as a direct counter to discrimination suffered by the Orthodox Jewish community in seeking to obtain housing in the private sector.”
Although AIHA might have to accept someone from outside the community if it had room, that remained a theoretical possibility because in practice strictly Orthodox demand for social housing “far exceeds” supply.
Lawyers for the woman also tried to use the European Union’s Race Directive against the policy and invoked the JFS 2009 case.
Until then, many schools had simply determined entry on the basis of the child’s Jewish status. Faith schools are allowed to give priority to children from their own religious group.
But since Jews are legally defined as both a religious and an ethnic group, the Supreme Court ruled that using parental origin was a matter of ethnicity, not religion, and that was unlawful. (Hence schools have since introduced a religious practice test).
But the Supreme Court last week dismissed the JFS case as irrelevant here since the AIHA was choosing people on the basis of religious practice. AIHA “did not make its selection on the grounds of a person’s Jewish matrilineal descent, but on the grounds of whether they engage in Orthodox Jewish observance”.
Intriguingly, Lord Sales at one point raised the question of what might happen if Orthodox Jews were to be considered as an ethnic group in their own right. But he did not pursue the hypothesis, saying that no evidence had been offered to support it.
