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

Front-Office Developer (C#, .NET, Java,Artificial Intelligence)

£30000 - £45000 per annum + benefits+bonus+package: Harrington Starr: Front-Of...

C++ Quant Developer

£700 per day: Harrington Starr: Quantitative Developer C++, Python, STL, R, PD...

Java/Calypso Developer

£700 per day: Harrington Starr: Java/Calypso Developer Java, Calypso, J2EE, J...

SQL Developer

£500 per day: Harrington Starr: SQL Developer SQL, C#, Stored Procedures, MDX...

Day In a Page

Read Next
Ashya King in hospital with his mother  

Ashya King: Breakdown in relations led to this PR fiasco

Paul Peachey
Jim Murphy, Shadow Secretary of State for International Development holds a carton of eggs during a speech to Better Together supporters  

When the course of history is on the line, democracy is a raw, vicious and filthy business

Matthew Norman
Chief inspector of GPs: ‘Most doctors don’t really know what bad practice can be like for patients’

Steve Field: ‘Most doctors don’t really know what bad practice can be like for patients’

The man charged with inspecting doctors explains why he may not be welcome in every surgery
Stolen youth: Younger blood can reverse many of the effects of ageing

Stolen youth

Younger blood can reverse many of the effects of ageing
Bob Willoughby: Hollywood's first behind the scenes photographer

Bob Willoughby: The reel deal

He was the photographer who brought documentary photojournalism to Hollywood, changing the way film stars would be portrayed for ever
Hollywood heavyweights produce world's most expensive corporate video - for Macau casino

Hollywood heavyweights produce world's most expensive corporate video - for Macau casino

Scorsese in the director's chair with De Niro, DiCaprio and Pitt to star
Angelina Jolie's wedding dress: made by Versace, designed by her children

Made by Versace, designed by her children

Angelina Jolie's wedding dressed revealed
Anyone for pulled chicken?

Pulling chicks

Pulled pork has gone from being a US barbecue secret to a regular on supermarket shelves. Now KFC is trying to tempt us with a chicken version
9 best steam generator irons

9 best steam generator irons

To get through your ironing as swiftly as possible, invest in one of these efficient gadgets
England v Norway: Wayne Rooney admits England must ‘put on a show’ to regain faith

Rooney admits England must ‘put on a show’ to regain faith

New captain vows side will deliver for small Wembley crowd
‘We knew he was something special:’ Radamel Falcao's journey from teenage debutant to Manchester United's star signing

‘We knew he was something special’

Radamel Falcao's journey from teenage debutant to Manchester United's star signing
'I’ll tell you what I would not serve - lamb and potatoes': US ambassador hits out at stodgy British food served at diplomatic dinners

'I’ll tell you what I would not serve - lamb and potatoes'

US ambassador hits out at stodgy British food
Radio Times female powerlist: A 'revolution' in TV gender roles

A 'revolution' in TV gender roles

Inside the Radio Times female powerlist
Endgame: James Frey's literary treasure hunt

James Frey's literary treasure hunt

Riddling trilogy could net you $3m
Fitbit: Because the tingle feels so good

Fitbit: Because the tingle feels so good

What David Sedaris learnt about the world from his fitness tracker
Saudis risk new Muslim division with proposal to move Mohamed’s tomb

Saudis risk new Muslim division with proposal to move Mohamed’s tomb

Second-holiest site in Islam attracts millions of pilgrims each year
Alexander Fury: The designer names to look for at fashion week this season

The big names to look for this fashion week

This week, designers begin to show their spring 2015 collections in New York