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

Selby Jennings: VP/SVP Credit Quant- NY- Investment Bank

Not specified: Selby Jennings: VP/SVP Credit Quant Top tier investment bank i...

Ashdown Group: Senior Marketing Executive- City of London, Old Street

£40000 - £43000 per annum + benefits: Ashdown Group: Senior Marketing Executiv...

Ashdown Group: Marketing Manager

£40000 - £43000 per annum + benefits: Ashdown Group: An international organisa...

Ashdown Group: Internal Recruiter -Rugby, Warwickshire

£25000 - £30000 per annum: Ashdown Group: Internal Recruiter -Rugby, Warwicksh...

Day In a Page

Read Next
Iraqi soldiers trained by the US were routed by IS’s smaller force  

War with Isis: The West needs more than a White Knight

Patrick Cockburn
Christmas Day cinema-goers seem to have mistaken the complexities of the right to free speech  

There's a time to speak and a time to keep quiet

Paul Vallely
War with Isis: The West needs more than a White Knight

The West needs more than a White Knight

Despite billions spent on weapons, the US has not been able to counter Isis's gruesome tactics, says Patrick Cockburn
Return to Helmand: Private Davey Graham recalls the day he was shot by the Taliban

'The day I was shot by the Taliban'

Private Davey Graham was shot five times during an ambush in 2007 - it was the first, controversial photograph to show the dangers our soldiers faced in Helmand province
Revealed: the best and worst airlines for delays

Revealed: the best and worst airlines for delays

Many flyers are failing to claim compensation to which they are entitled, a new survey has found
The stories that defined 2014: From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions

The stories that defined 2014

From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions
Stoke-on-Trent becomes first British city to be classified as 'disaster resilient' by the United Nations

Disaster looming? Now you know where to head...

Which British city has become the first to be awarded special 'resilience' status by the UN?
Finally, a diet that works: Californian pastor's wildly popular Daniel Plan has seen his congregation greatly reduced

Finally, a diet that works

Californian pastor's wildly popular Daniel Plan has seen his congregation greatly reduced
Say it with... lyrics: The power of song was never greater, according to our internet searches

Say it with... lyrics

The power of song was never greater, according to our internet searches
Professor Danielle George: On a mission to bring back the art of 'thinkering'

The joys of 'thinkering'

Professor Danielle George on why we have to nurture tomorrow's scientists today
Monique Roffey: The author on father figures, the nation's narcissism and New Year reflections

Monique Roffey interview

The author on father figures, the nation's narcissism and New Year reflections
Introducing my anti-heroes of 2014

Introducing my anti-heroes of 2014

Their outrageousness and originality makes the world a bit more interesting, says Ellen E Jones
DJ Taylor: Good taste? It's all a matter of timing...

Good taste? It's all a matter of timing...

It has been hard to form generally accepted cultural standards since the middle of the 19th century – and the disintegration is only going to accelerate, says DJ Taylor
Olivia Jacobs & Ben Caplan: 'Ben thought the play was called 'Christian Love'. It was 'Christie in Love' - about a necrophiliac serial killer'

How we met

Olivia Jacobs and Ben Caplan
Bill Granger recipes: Our chef's breakfasts will revitalise you in time for the New Year

Bill Granger's healthy breakfasts

Our chef's healthy recipes are perfect if you've overindulged during the festive season
Transfer guide: From Arsenal to West Ham - what does your club need in the January transfer window?

Who does your club need in the transfer window?

Most Premier League sides are after a striker, but here's a full run down of the ins and outs that could happen over the next month
The Last Word: From aliens at FA to yak’s milk in the Tour, here’s to 2015

Michael Calvin's Last Word

From aliens at FA to yak’s milk in the Tour, here’s to 2015