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

Metail Ltd: Business Development Manager for Asia Pacific

£35,000 - £40,000 based on experience : Metail Ltd: As a Business Development ...

Guru Careers: Product Manager / Product Owner

£30 - 40k (DOE) + Bonus & Benefits: Guru Careers: A Product Manager / Product ...

Recruitment Genius: Sales Executive

£16000 - £17000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: Car Sales Executive - £17,000 Basic, OTE Uncapped

£17000 - £27000 per annum: Recruitment Genius: The Company are looking for a S...

Day In a Page

Read Next
All a-flutter: Marbled White Butterfly (Melanargia galathea) resting on a flower  

Lepidopterists rejoice – our finest butterfly month is almost here

Michael McCarthy
The memorial to the 7/7 bombing victims  

After the London bombings on July 7 I was dubbed a 'British Muslim' for the first time - suddenly my religious identity took centre stage

Sabbiyah Pervez
Greece says 'No': A night of huge celebrations in Athens as voters decisively back Tsipras and his anti-austerity stance in historic referendum

Greece referendum

Greeks say 'No' to austerity and plunge Europe into crisis
Ten years after the 7/7 terror attacks, is Britain an altered state?

7/7 bombings anniversary

Ten years after the terror attacks, is Britain an altered state?
Beautiful evening dresses are some of the loveliest Donatella has created

Versace haute couture review

Beautiful evening dresses are some of the loveliest Donatella has ever created
No hope and no jobs, so Gaza's young risk their lives, climb the fence and run for it

No hope and no jobs in Gaza

So the young risk their lives and run for it
Fashion apps: Retailers roll together shopping and social networking for mobile customers

Fashion apps

Retailers roll together shopping and social networking for mobile customers
The Greek referendum exposes a gaping hole at the heart of the European Union – its distinct lack of any genuine popular legitimacy

Gaping hole at the heart of the European Union

Treatment of Greece has shown up a lack of genuine legitimacy
Number of young homeless in Britain 'more than three times the official figures'

'Everything changed when I went to the hostel'

Number of young homeless people in Britain is 'more than three times the official figures'
Compton Cricket Club

Compton Cricket Club

Portraits of LA cricketers from notorious suburb to be displayed in London
London now the global money-laundering centre for the drug trade, says crime expert

Wlecome to London, drug money-laundering centre for the world

'Mexico is its heart and London is its head'
The Buddhist temple minutes from Centre Court that helps a winner keep on winning

The Buddhist temple minutes from Centre Court

It helps a winner keep on winning
Is this the future of flying: battery-powered planes made of plastic, and without flight decks?

Is this the future of flying?

Battery-powered planes made of plastic, and without flight decks
Isis are barbarians – but the Caliphate is a dream at the heart of all Muslim traditions

Isis are barbarians

but the Caliphate is an ancient Muslim ideal
The Brink's-Mat curse strikes again: three tons of stolen gold that brought only grief

Curse of Brink's Mat strikes again

Death of John 'Goldfinger' Palmer the latest killing related to 1983 heist
Greece debt crisis: 'The ministers talk to us about miracles' – why Greeks are cynical ahead of the bailout referendum

'The ministers talk to us about miracles'

Why Greeks are cynical ahead of the bailout referendum
Call of the wild: How science is learning to decode the way animals communicate

Call of the wild

How science is learning to decode the way animals communicate