In Major School Case, British Courts Rule On Who Is a Jew

State Intervenes for the First Time in Nearly Four Centuries

Challenge to Tradition: Prince Charles visits Jewish school students in London.
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Challenge to Tradition: Prince Charles visits Jewish school students in London.

By John Jeffay

Published July 08, 2009, issue of July 17, 2009.
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Jewish schools are guilty of racial discrimination if they reject children on the grounds of their parentage, a British court has ruled.

In a decision that has shocked the country’s 300,000-strong Jewish community, the Court of Appeal held that ongoing personal acts of faith, rather than birth or conversion, must define who is a Jew.

In doing so, the court overturned an earlier high court judgment upholding the decision of the JFS in London (the oldest and largest Jewish school in Britain) to deny a boy admission because it did not recognize his mother’s conversion.

The three judges, one of them Jewish, ruled that any selection criteria that gives ethnic priority to a Jew is showing racial discrimination. They cited the Race Relations Act 1976, which was introduced to prevent discrimination on the grounds of race.

The ruling means that Jewish schools of any denomination, whether privately or state funded, will be barred from giving priority to children who are born Jewish or who convert, and instead must consider how the children and their families practice their Judaism.

The move throws into disarray the admissions arrangements for Britain’s 97 Orthodox schools and may force them to introduce “faith tests” — like church schools, which require fortnightly attendance at Sunday services. Such a radical intervention — unprecedented since the time of Oliver Cromwell — calls into question the relationship between church (or synagogue) and state.

The United Synagogue, the denominationto which JFS belongs, already has spent almost $250,000 in legal costs to fight the case, and is now planning a challenge at the highest court in the land, the House of Lords.

The boy’s mother had converted under the auspices of an independent progressive synagogue but JFS rejected his application in line with its admissions policy, which prioritizes children recognized as Jewish by the Office of the Chief Rabbi. Despite representing its largest religious Jewish denomination — the Modern Orthodox United Synagogue — the Chief Rabbi is not a religious representative of all British Jewry. The father of the boy — for legal reasons identified only as Child M — challenged the school at the high court, claiming the school’s actions had been racist and illegal. He lost.

But, after two years of legal wrangling, the Court of Appeal found in his favor on 25 June. The judges said: “The motive for discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful.” They held that it was lawful to discriminate between Jewish and non-Jewish children on religious grounds, but not on what they called racial grounds.

Atalia Cadranel, spokeswoman for the Board of Deputies, an elected body representing all Jews in the United Kingdom, said: “This is a landmark judgment that has major ramifications for every Jewish school in the U.K. The ruling says that the school’s actions were ethnically inspired — and in contravention of the Race Relations Act of 1976. In fact, all Jewish schools base their admissions criteria on religious law and not ethnic criteria.

“Unless the judgment is overturned, schools admissions will be on the basis of a faith test.

“It could be dependent on things like shul attendance, but will be determined by the relevant rabbinic authority of the given school. The concern is that this is a retrograde step and could end up with families feigning observance in order to secure school places. Likewise, some families may be denied the chance to give their children a Jewish education.”

Rabbi Tony Bayfield, head of the Movement for Reform Judaism, strongly disagrees with the JFS admissions policy but remains opposed the court’s intervention. He said: “JFS denies Jewish status to converts from Reform, Liberal and Masorti, and we abhor that… But we are also extremely worried about the state interfering in our right as a Jewish community to define for ourselves who is a Jew.”

Jack Rabinowicz, a Jewish lawyer and expert in education law, said: “It’s the first time since the resettlement of Jews in this country more than 350 years ago that the state has intervened in the question of who is a Jew. That’s quite a remarkable thing.

“Jews have benefited over the last several decades from the Race Relations Act. You have had Jewish policemen, for example, who have claimed discrimination if they’re asked to work on Shabbos. The court accepted you can have discrimination on the basis of faith. The difficulty for schools, old-age homes and other institutions is that if you have discrimination on the grounds of religious practice, then that’s very much more difficult. You can a have a Reform Jew who is very careful about their practice and an Orthodox Jew who is very much more lax.”

Rabinowicz suggests the House of Lords may take the view that the ruling goes too far in terms of state intervention, and reverse it.

The Liberal movement is the only denomination to welcome the ruling. Rabbi Danny Rich, chief executive of Liberal Judaism, said: “We have taken the most clear and outspoken position on this. Judaism is transmitted not by birth, but by identity and upbringing.” He further noted that it was not proper for a state-funded school to decide its admissions based on the status of the child’s mother and with reference to only one British Jewish religious authority.

Joshua Rowe, chair of governors at Manchester’s King David High School, the largest state-funded Orthodox school outside London, said: “The selection process at JFS and other denominational schools is based on religion, not race. The test of birth is a religious test, not a racist one. It is a test utilized to define who is a Jew, and it is a test which is intended solely to preserve the religious character of the school and the right to preserve ‘difference.’ To the extent that it might be argued that Judaism is itself racist (because it defines membership on the basis of birth), the rebuttal must surely lie in the fact that anyone who is not Jewish by birth is nevertheless entitled to join the faith.”

JFS itself has issued a brief statement saying it is disappointed and believes the ruling will undermine its ethos. It said it was still unclear how the ruling would affect admissions for the new school year in September, but declined to comment further.

Chief Rabbi Sir Jonathan Sacks said: “Ethnicity is irrelevant to Jewish identity, according to Jewish law. Education has been the crucible of Judaism throughout the millennia, and the development of Jewish faith schools is one of Anglo Jewry’s greatest achievements.”

Contact John Jeffay at feedback@forward.com


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