The JFS case has split the Jewish community and now the Supreme Court almost down the middle.
The Supreme Court split five against the school’s admission policy and four in favour. Five found the admissions policy discriminatory. Four called the majority result “extraordinary... one cannot help feeling that something has gone wrong”. It is “manifest discrimination against Jewish schools”. The school’s policy was no more surprising than refusing to admit a boy to a girls’ school.
The majority finds that Jewish schools discriminate and the minority finds that conclusion itself discriminatory. How?
Legally, the argument centred on whether direct race discrimination is assessed objectively or if the courts can assess the subjective view of the alleged discriminator. The majority said that subjective intention is irrelevant. Not admitting a child to a school because you don’t think they are Jewish is discriminatory. There is no need to go further. The minority called for something more nuanced.
The school’s admission policy carried difficult implications of its own. If the school could refuse to admit a pupil because their mother was or was not Jewish, logic would suggest an employer could refuse employment on that basis.
Yet preventing this has required the courts to intervene in questions of religion which it strives hard to avoid. It has resulted in Jews at least appearing to be in a uniquely unfavourable position compared to other religions, all of which are allowed to educate their children according to the tenets of the religion. In itself this might be the basis of a discrimination claim.
What are the consequences for Jewish schools? At best, the pain continues. A practice-based admissions test just pushes the problem back one step. The question then depends on the requirements for membership of the Synagogue.
At worst there can be no Jewish schools which admit children “according to Jewish religious law and belief … they will be forced to apply a concocted test … with no basis whatsoever in 3500 years of Jewish law and teaching” (Lord Rodger, in the minority).
The consequences for other faith schools are less clear cut. As Lady Hale said, no other religious schools adopt “descent based criteria”. It may be arguable that there is indirect race discrimination in some cases when a non-Christian is refused admission to a Cof E or Catholic school. Justification might need considering on a case by case or school by school basis. The Supreme Court did not think that JFS had shown that its policy was justified.
Several members of the Court suggested that race relations law should be amended. Lord Phillips called it a “defect in our law of discrimination”. He suggested that it should be possible to defend direct race discrimination on the basis that your conduct was justifiable. Parliament avoided this so that courts could not allow discrimination but Lord Phillips has given extra cover. He suggested that courts would only find discrimination justified if it was in favour of a minority and not against it. If Parliament seized this chance – and allowed justification of direct discrimination – there is a real possibility that positive discrimination would be lawful in a wide range of cases.
Alternatively it might be done on a case by case basis. Lady Hale suggested that Parliament should legislate immediately to increase the range of “justified departures” from race relations law.
Fiona Scolding is a barrister at Hardwicke chambers