The British Supreme Court ruled on Wednesday against a Jewish school's admission policy after it upheld the Court of Appeal's decision that its criteria was discriminatory on grounds of race.
Jews' Free School (JFS), in Kenton, north London, lost its appeal after the court found that the school's admission criteria - that is based on the faith of the mother, as set out by Jewish law - was discriminatory.
In June, the Court of Appeal issued a ruling against the school, saying that it was illegal for it to admit pupils on the basis of whether their mother was Jewish or not and that it contravened Race Relations legislation.
"The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act 1976," Lords Justice Sedley, Rimer and Lady Justice Smith said at the time.
The ruling follows the case brought on behalf of a 12-year-old boy - known for legal reasons as "M" - who was refused admission to JFS in 2007 as his mother had converted to Judaism through the Progressive Judaism movement, which is not recognized by the school. The United Synagogue, led by the Office of the Chief Rabbi, is the Orthodox religious authority of the school.
In court on Wednesday, the Supreme Court judges dismissed JFS's appeal and upheld the Court of Appeal's decision by a majority of five to four, the closest possible margin.
All of the Supreme Court judges made it clear that JFS's admission policy was not "racist" and that the Chief Rabbi, the United Synagogue and the governors of JFS acted with great sincerity and are entirely free from moral blame. Lord Kerr described their motives as "unimpeachable."
The judgement means the Court has upheld the Court of Appeal's view that the test of who is a Jew, based on descent or conversion, as applied by any Beth Din - whether the London Beth Din or any other rabbinic authority - is an ethnically based test of descent.
No Jewish faith school can apply an admissions criteria based on whether a child is a member of the Jewish religion however defined, or based on any criteria which would require a child to be a member of the Jewish religion, for example synagogue membership.
In his judgment Lord Rodger said: "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... 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.
"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."
The decision will also have an impact on other Jewish organizations. If such criteria are used in the context of employment, education or the provision of goods or services, unless the organization can rely on one of the very limited exemptions to the Race Relations Act 1976, its use will constitute direct race discrimination.
Thus the test applied by the Chief Rabbi in determining whether or not a person was "halachically" Jewish inevitably involved the ethnicity of the person under consideration and brought the test within the scope of direct racial discrimination.
In consequence, the ruling has deemed that it was not lawful for the school to use that test in determining to whom priority should be given in offering places at the school and the school could only lawfully apply a test related to religious practice if it wished to give priority to Jewish students.
The ruling has wider implications as the judges' decision means that faith schools cannot have an admissions policy based on religious law. The Supreme Court is the highest court in the UK thus if the school wishes to take the case further, it must take it to the European Court of Human Rights.
"The United Synagogue is extremely disappointed with the Supreme Court ruling which interferes with the Torah-based imperative on us to educate Jewish children, regardless of their background," said United Synagogue president Dr. Simon Hochhauser. "Practice tests are anathema to the United Synagogue, which for centuries has opened its institutions to all Jews, observant or not. These practice tests have no relevance under Jewish law and serve only to support the notion of a test of religion in the eyes of the English legal system. As Lord Brown noted, essentially we must now apply a 'non-Jewish definition of who is Jewish.'"
The Chief Rabbi Lord Sacks said he understood the complexity of the case and that he would consider the implications of the verdict before responding in full.
"The closeness of the Court's judgement indicates how complex this case was, both in English law and debated issues of Jewish identity. I welcome the judges' vindication of the good faith in which the United Synagogue, the London Beth Din and our office have acted," Lord Sacks said.
"I likewise welcome the suggestion of the President of the Supreme Court that the issue at stake in this case may merit legislative remedy. However, these matters require careful reflection and consultation, and instant reactions would be inappropriate. Our office will be working closely together with the schools, the United Synagogue, the Board of Deputies and other interested parties to consider the implications of the verdict before making a full response," he added.
The Board of Deputies of British Jews said they were "extremely disappointed" by the decision.
"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.
The Board said it will urgently explore, 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 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."
The governors of JFS also said they were "disappointed" but must work towards finding a workable solution for a Jewish practice test to be used for admissions in 2011.
"Of those who ruled against the school, Lord Philips, President of the Supreme Court, suggested that there may be a defect in the law by not allowing the school to give admission priority, when oversubscribed, to those who are Jewish in Orthodox law, and all stressed that neither the school nor the Chief Rabbi had acted in any morally wrong way or in any racist way in the commonly held sense," chairman of governors Russell Kett said. "The unlawful discrimination relates to ethnicity and not race as such."
"JFS felt it had no alternative than to continue to press for its test of 'Jewishness' to be based solely on Orthodox Jewish religious law, rather than on a series of factors which themselves have no relevance under Jewish law but which seem to support the notion of a test of Jewish practice required by English legal system," he added.