We are extremely disappointed by this decision, which was reached by the narrowest possible margin.

The judgement makes it abundantly clear that there is no suggestion that the criteria used by JFS or the Office of the Chief Rabbi (OCR) were racist in any conventional sense.  However, the sheer breadth of the Race Relations Act 1976 meant that JFS’s admissions criteria, based on millennia of Jewish practice, fell foul of the civil law despite the “unimpeachable motives” and the “sincerely and conscientiously held beliefs” of the school and of the OCR.

As Lord Rodger noted with particular clarity in his dissenting speech, “The decision of the majority … means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief. … Jewish schools will be forced to apply a concocted test for deciding who is to be admitted [that] has no basis whatsoever in 3,500 years of Jewish law and teaching. … The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.”

In order to correct that wrong, we will be exploring, as a matter of urgency and after consultation across the community, the possibility of a legislative change to restore the right of Jewish schools of all denominations to determine for themselves who qualifies for admission on the basis of their Jewish status, which we consider to be a fundamental right for our community and one with which the members of the Supreme Court had great sympathy.

In the meantime, schools will no doubt once again confer with their governors and professional and religious advisers as to how to adapt to their admissions procedures accordingly, whether this involves continuing with a process of collecting points for a Certificate of Religious Practice, or otherwise.  These are obviously matters for individual schools to determine, but the Board will continue to provide as much assistance and guidance as we can.

Editor’s notes:

Broadly speaking, the effect of the judgement is to force schools to maintain the process adopted this autumn for 2010 admissions, which involved considering the level of religious practice of applicants and their families. The judgment confirms the finding of the Court of Appeal that it is unlawful to make any enquiry about a child’s Jewish status as conferred by either parents’ Jewishness.

Extracts from the Judgement (emphasis added):-

Lady Hale (upholding the Court of Appeal)

67                There is no doubt that the Jewish people are an ethnic group within the meaning of the Race Relations Act 1976. No Parliament, passing legislation to protect against racial discrimination in the second half of the twentieth century, could possibly have failed to protect the Jewish people, who had suffered so unspeakably before, during and after the Holocaust. If Parliament had adopted a different model of protection, we would not be here today. Parliament might have adopted a model of substantive equality, allowing distinctions which brought historically disadvantaged groups up to the level of historically advantaged groups. But it did not do so. It adopted a model of formal equality, which allows only carefully defined distinctions and otherwise expects symmetry. A man must be treated as favourably as a woman, an Anglo-Saxon as favourably as an African Caribbean, a non-Jew as favourably as a Jew. Any differentiation between them, even if it is to redress historic disadvantage, must be authorised by legislation.

68              This means that it is just as unlawful to treat one person more favourably on the ground of his ethnic origin as it is to treat another person less favourably. There can be no doubt that, if an employer were to take exactly the same criterion as that used by the Office of the Chief Rabbi and refuse to employ a person because the Chief Rabbi would regard him as halachically Jewish, the employer would be treating that person less favourably on grounds of his ethnic origin. As Lord Kerr explains, there can be no logical distinction between treating a person less favourably because he does have a particular ethnic origin and treating him less favourably because he does not.

69               Some may feel that discrimination law should modify its rigid adherence to formal symmetry and recognise a greater range of justified departures than it does at present. There may or may not be a good case for allowing Jewish schools to adopt criteria which they believe to be required by religious law even if these are ethnically based. As far as we know, no other faith schools in this country adopt descent-based criteria for admission. Other religions allow infants to be admitted as a result of their parents’ decision. But they do not apply an ethnic criterion to those parents. The Christian Church will admit children regardless of who their parents are. Yet the Jewish law has enabled the Jewish people and the Jewish religion to survive throughout centuries of discrimination and persecution. The world would undoubtedly be a poorer place if they had not. Perhaps they should be allowed to continue to do so.

70                  But if such allowance is to be made, it should be made by Parliament and not by the courts’ departing from the long-established principles of the anti-discrimination legislation. The vehicle exists in the Equality Bill, which completed its committee stage in the House of Commons in the 2008-09 session and will be carried over into the 2009-10 session. The arguments for and against such a departure from the general principles of the legislation could then be thoroughly debated. The precise scope of any exception could also be explored. We know from the helpful intervention of the Board of Deputies of British Jews that the Masorti, Reform and Liberal denominations of Judaism have welcomed the result, if not the reasoning, of the decision of the Court of Appeal and would not wish for the restoration of the previous admission criteria. That is a debate which should not be resolved in court but by Parliament. We must not allow our reluctance to enter into that debate, or to be seen to be imposing our will upon a well-meaning religious body, to distort the well settled principles of our discrimination law. That is to allow the result to dictate the reasoning.

Lord Kerr (upholding the decision of the Court of Appeal)

124.    One can have sympathy with the school authorities in their wish to pursue what must have seemed to them an entirely legitimate religious objective.  It is plain that the Chief Rabbi and the governors of JFS are entirely free from any moral blame.  That they have fallen foul of the 1976 Act does not involve any reprehensible conduct on their part for it is accepted on all sides that they acted on sincerely and conscientiously held beliefs. Their motives are unimpeachable. The breach of the legislation arises because of the breadth of its reach. The grounds on which the rejection of M was made may well be considered perfectly reasonable in the religious context but it is because they amount to ethnic grounds under the legislation that a finding against the school became, in my opinion, inescapable.  I would dismiss the appeal.

Lord Rodger (dissenting)

224.    ... this looks like a dispute between two rival religious authorities, the Office of the Chief Rabbi and the Masorti authorities, as to who is Jewish ...

225.     The decision of the majority means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief.  If the majority are right, expressions of sympathy for the governors of the School seem rather out of place since they are doing exactly what the Race Relations Act exists to forbid:  they are refusing to admit children to their school on racial grounds.  That is what the Court’s decision means.  And, if that decision is correct, why should Parliament amend the Race Relations Act to allow them to do so?  Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted.  That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching.

226.    The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.

228.    Lady Hale says that M was rejected because if his mother’s ethnic origins which were Italian and Roman Catholic.  I respectfully disagree.  His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared:  the only thing that mattered was that she had not converted to Judaism under Orthodox auspices.  It was her resulting non-Jewish religious status in the Chief Rabbi’s eyes, not the fact that her ethnic origins were Italian and Roman Catholic, which meant that M was not considered for admission.  The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi;  they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic.

Lord Walker (dissenting)

248.    If the [majority] argument succeeds it follows that Jewish religious law as to who is a Jew (and as to what forms of conversion should be recognised) must henceforth be treated as irrelevant.  Jewish schools in future, if oversubscribed, must decide on preference by reference only to outward manifestations of religious practice.  The Court of Appeal’s judgment insists on a non-Jewish definition of who is Jewish.  Jewish schools, designated as such by the Minister and intended to foster a religion which for over 3000 years has defined membership largely by reference to descent, will be unable henceforth even to inquire whether one or both of the applicant child’s parents are Jewish.  (Yet is that so very different from a Catholic school asking if the child has been baptised?  It is hardly likely to have been unless one at least of its parents was a Christian)

249.    The root question for the Court is simply this: can a Jewish faith school ever give preference to those who are members of the Jewish religion under Jewish law I would answer: yes, it can.  To hold the contrary would be to stigmatise Judaism as a directly racially discriminating religion. I would respectfully disagree with that conclusion.  Indeed I would greatly regret it.  On this issue of direct discrimination my views coincide entirely with those of Lord Rodger.

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