Fiona Scolding: The JFS case has far-reaching consequences

Share
Related Topics

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

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Opilio Recruitment: QA Automation Engineer

£30k - 38k per year + Benefits: Opilio Recruitment: An award-winning consume...

Opilio Recruitment: UX & Design Specialist

£40k - 45k per year + Benefits: Opilio Recruitment: A fantastic opportunity ...

Opilio Recruitment: Publishing Application Support Analyst

£30k - 35k per year + Benefits: Opilio Recruitment: We’re currently re...

Opilio Recruitment: Digital Marketing Manager

£35k - 45k per year + benefits: Opilio Recruitment: A fantastic opportunity ...

Day In a Page

Read Next
A Pokot woman holds a razor blade after performing a circumcision on four girls  

The campaigns to end FGM are a welcomed step, but they don't go far enough

Charlotte Rachael Proudman
Our political system is fragmented, with disillusioned voters looking to the margins for satisfaction  

Politics of hope needed to avert flight to margins

Liam Fox
Homeless Veterans Christmas Appeal: ‘We give them hope. They come to us when no one else can help’

Christmas Appeal

Meet the charity giving homeless veterans hope – and who they turn to when no one else can help
Should doctors and patients learn to plan humane, happier endings rather than trying to prolong life?

Is it always right to try to prolong life?

Most of us would prefer to die in our own beds, with our families beside us. But, as a GP, Margaret McCartney sees too many end their days in a medicalised battle
Thomas Cook's outgoing boss Harriet Green got by on four hours sleep a night - is that what it takes for women to get to the top?

What does it take for women to get to the top?

Thomas Cook's outgoing boss Harriet Green got by on four hours sleep a night and told women they had to do more if they wanted to get on
Christmas jumper craze: Inside the UK factory behind this year's multicultural must-have

Knitting pretty: British Christmas Jumpers

Simmy Richman visits Jack Masters, the company behind this year's multicultural must-have
French chefs have launched a campaign to end violence in kitchens - should British restaurants follow suit?

French chefs campaign against bullying

A group of top chefs signed a manifesto against violence in kitchens following the sacking of a chef at a Paris restaurant for scalding his kitchen assistant with a white-hot spoon
Radio 4 to broadcast 10-hour War and Peace on New Year's Day as Controller warns of cuts

Just what you need on a New Year hangover...

Radio 4 to broadcast 10-hour adaptation of War and Peace on first day of 2015
Cuba set to stage its first US musical in 50 years

Cuba to stage first US musical in 50 years

Claire Allfree finds out if the new production of Rent will hit the right note in Havana
Christmas 2014: 10 best educational toys

Learn and play: 10 best educational toys

Of course you want them to have fun, but even better if they can learn at the same time
Paul Scholes column: I like Brendan Rodgers as a manager but Liverpool seem to be going backwards not forwards this season

Paul Scholes column

I like Brendan Rodgers as a manager but Liverpool seem to be going backwards not forwards this season
Lewis Moody column: Stuart Lancaster has made all the right calls – now England must deliver

Lewis Moody: Lancaster has made all the right calls – now England must deliver

So what must the red-rose do differently? They have to take the points on offer 
Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

Cameron, Miliband and Clegg join forces for Homeless Veterans campaign

It's in all our interests to look after servicemen and women who fall on hard times, say party leaders
Millionaire Sol Campbell wades into wealthy backlash against Labour's mansion tax

Sol Campbell cries foul at Labour's mansion tax

The former England defender joins Myleene Klass, Griff Rhys Jones and Melvyn Bragg in criticising proposals
Nicolas Sarkozy returns: The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?

Sarkozy returns

The ex-President is preparing to fight for the leadership of France's main opposition party – but will he win big enough?
Is the criticism of Ed Miliband a coded form of anti-Semitism?

Is the criticism of Miliband anti-Semitic?

Attacks on the Labour leader have coalesced around a sense that he is different, weird, a man apart. But is the criticism more sinister?
Ouija boards are the must-have gift this Christmas, fuelled by a schlock horror film

Ouija boards are the must-have festive gift

Simon Usborne explores the appeal - and mysteries - of a century-old parlour game