Britain's Jewish faith schools may have to revise their admission policies after the Court of Appeal ruled that the widely used criteria for selecting pupils breached the Race Discrimination Act.
In a far-reaching judgment, three judges found the well known JFS (formerly the Jews' Free School) in Brent, north-west London, racially discriminated against a 12-year-old boy by denying him a place at the school because his mother was not a recognised Jew.
The ruling was immediately attacked by the Chief Rabbi, Jonathan Sachs, who said he supported an appeal to the House of Lords to try to overturn the judgment so that Jews could "be true to the Jewish faith" by upholding the existing criteria for membership of the Jewish religion.
The boy's father is Jewish by birth, but his mother is Jewish by conversion conducted at a Progressive rather than an Orthodox synagogue and therefore not recognised by the Office of the Chief Rabbi (OCR). It is a basic principle that a child is not recognised by the OCR and other bodies as Jewish unless his or her mother is Jewish.
JFS argued that its admissions policy giving preference to Jewish children when the school was oversubscribed was lawful because it was based on religious and not racial criteria.
But the judges said that "the requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or by conversion, is a test of ethnicity which contravenes the Race Relations Act".
The discrimination against the boy, referred to as M, was direct discrimination and therefore could not be justified, said Lords Justices Sedley and Rimer and Lady Justice Smith.
Even if it had been indirect, "we consider its purpose to be selection on the basis of ethnicity and therefore not to constitute a legitimate aim".
After the judgment, solicitor John Halford, representing the boy's father, said: "We welcome the strong statement by the court that the fundamental right to equality before the law, regardless of race, applies to the admissions criteria of a faith school."
He added: "We have never sought to interfere with the right of Orthodox Jews to define for their own religious purposes who they do or do not recognise as Jewish. However, it is unlawful for a child's ethnic origins to be used as the criterion for entry to a school. Such a practice is even more unacceptable in the case of a comprehensive school funded by the taxpayer."
Many other Jewish schools across the UK are believed to operate a similar policy and will be directly affected by the court's decision.
Faith schools in general are allowed to give preference to children of their own faith if they are oversubscribed – so long as the process is not based on ethnic origin.
The sticking point: Who is a Jew?
The traditional, Orthodox view is that a Jew is a person born to a Jewish mother or who is a convert to Judaism. Some other denominations now also accept the child of a Jewish father and non-Jewish mother as Jewish when the child is raised as a Jew. In Britain, not all Jewish conversions are recognised by the Office of the Chief Rabbi (OCR). All branches of Orthodox Judaism and Conservative Judaism tend to uphold the principles following matrilineal descent.
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