Jewish Free School policy on admissions in breach of race relations law

R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) : R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) & ORS (United Synagogue) – [2009] UKSC 15 – Read judgmentPress summary

A school for Orthodox Jews which tested applicants for matrilineal descent was acting on the basis of ethnic origin, meaning that their admission requirement constituted direct racial discrimination.

The Court of Appeal has decided there that the appellant school’s admissions policy had directly racially discriminated against the son of the respondent father, contrary to the Race Relations Act 1976 s.1 (RRA).

The father was Jewish by descent and his wife had converted to Judaism through a non-orthodox synagogue. The school’s admissions policy was to give preference to children whose status as Jews was recognised by the Office of the Chief Rabbi (OCR), which represented orthodox Jews. The OCR required that the child’s mother be Jewish either by matrilineal descent or by conversion under orthodox auspices, or that the child had converted. The mother’s conversion was not recognised by the OCR, and the son had not undertaken to convert to orthodox Judaism, and so he was refused admission. The respondent’s dissatisfaction was not with the policy of the school in giving preference in admission to Jews, but with the application of Orthodox standards of conversion which led to the OCR declining to recognize the son as a Jew. The father failed in his claim for judicial review of the school’s decision but his appeal was successful. The school argued that the matrilineal test was based on religious law and the discrimination the school had applied based on the test was religious discrimination, not racial discrimination under s.1 RRA; they also contended that although there was a Jewish ethnic group as defined by the criteria set out in Mandla (Sewa Singh) v Dowell Lee (1983) 2 AC 548 HL, the matrilineal test described a group that overlapped with, but was not identical to, the ethnic group.

HELD:

Appeal dismissed (Lords Hope, Rodger, Walker, and Brown dissenting).

The argument that the matrilineal test derived from religious law, and what had motivated the school was compliance with that law, was invalid. The motive of the discriminator for applying the discriminatory criteria was irrelevant. A person who discriminated on the ground of race, as defined by the Act, could not pray in aid the fact that the ground of discrimination was one mandated by religion (R v Birmingham City Council Ex p Equal Opportunities Commission (No1) (1989) AC 1155 HL and James v Eastleigh BC (1990) 2 AC 751 HL). The definition of racial grounds in section 3 RRA Act included ethnic or national origins. Origins required a focus on descent. Descent would be a ground if the descent in question was one which traced racial or ethnic origin. There was a difficulty in distinguishing between ethnic and religious status. A woman converting to Judaism acquired both Jewish religious status and Jewish ethnic status within the Mandla definition. The religious test of matrilineal descent did not apply a criterion unconnected to race. It focused on the race or ethnicity of the woman from whom the individual was descended: where a Jew was descended from a woman who had converted to Judaism, the matrilineal link was with an ethnic Jew. Furthermore, the test was not restricted to descent from Jews by conversion. The origin to which the line led could be racial and was, in any event, ethnic. It was clear that the matrilineal test was one of ethnic origin. By definition, discrimination based on that test was discrimination on racial grounds under the Act. It was correct to say that there were two groups with an overlapping membership: those who were descended matrilineally from a Jew, and those who were currently members of the Mandla defined Jewish ethnic group. Discrimination against a person on the grounds that he or she was, or was not, a member of either group was racial discrimination. The school had discriminated on the basis of genetic descent by the maternal line from a woman who was Jewish, and that was therefore direct racial discrimination.

(Per Lord Hope, dissenting) The crucial question was not whether the son was a member of a separate ethnic group from those advantaged by the school’s admissions policy, but whether he had been treated differently on grounds of that ethnicity. Although a discriminator’s motive in treating a person less favourably on racial grounds did not negative racial discrimination, the question of motivation could be relevant to the question of whether the discrimination had been on racial grounds. The school’s motivation had been on religious, not racial, grounds.

COMMENT (January 2010)

In contrast to many other countries, there is no defence of justification to the English prohibition on direct racial discrimination. So the motive of the discriminator is to all intents and purposes irrelevant. This effectively put paid to the arguments advanced by the School and the OCR, that the reason why they apply the test for determining who is a Jew is because of what is laid down by Orthodox religious law. So what subjectively motivates them is compliance with this religious law, not the ethnicity of the candidates who wish to enter the school. But these motives are no more to the point than the motives of the council that charged a husband for admission to their pool while letting his wife in free; this discrepancy arose out of the discriminatory pensionable age provisions and therefore the council’s entire innocent motives – of allowing people of pensionable age free admission – had a discriminatory basis (James v Eastleigh Borough Council [1990] 2 AC 751.

In the instant case the religious edicts relating to conversion – to be found in Deuteronomy – plainly, in Lord Philips’ words, focus on race. The passage may have its place in a religious text but its subject is racial:

“…the Hittites, the Girgashites, and the Amorites, and the Canaanites, and the Girgashites, and the Amorites, and the Canaanites, and the Perizzites, and the Hivites, and the Jebusites…thou shalt smite them, and utterly destroy them; thou shalt make no covenant with them….Neither shalt thou make marriages with them; thy daughter thou shalt not give unto his son, nor his daughter shalt thou take unto thy son.” (Deut. Chapter 7)

If the admissions policy had involved indirect discrimination as Mumby J had agreed it did at first instance, then it would have been open to the school to argue that it was a proportionate means to a legitimate end – preserving Orthodox education. At that stage the school had successfully argued that it were to remain a school for Orthodox Jews it had to retain its existing admissions policy and therefore that policy was proportionate.

The difficulties in which the school ensnared itself illustrate the confusion created by the distinction, created by anti-discrimination legislation, between discriminating on the basis of religion (which is justifiable) and discriminating on the basis of ethnic origin or race (which is not). The school, in excluding the son, was enacting a policy which was based on religious precepts. But the impact it had on the son was because of his ethnicity. In situations such as there is no bright line between the one and the other. As Lord Kerr observes, the school’s policy was unimpeachable and justifiable. That is not to the point. There was direct discrimination under the Act, and therefore no justification could be advanced. “The breach of the legislation arises because of the breadth of its reach” (para 124).

In deciding whether to distinguish between direct and indirect discrimination in Section 1(1)(a) of the Act Parliament has created something of a logistical minefield. The close link between ethnicity (which falls within this subsection) and religion (which does not) makes it so. The question of the construction of this subsection has not arisen before this case but now the House of Lords has shone light on this intellectually woolly and untenable distinction, more litigation of this kind will inevitably follow.

This is not to suggest that confessional allegiance should be put on the same footing as ethnicity. As Christopher Hitchens has pointed out in his critique of U.N. Resolution 62/154, on “Combating defamation of religions, “If religion and race can be run together, then the condemnations that racism axiomatically attracts can be surreptitiously extended to religion, too.”   This would lead to the clumsy but effective “bludgeoning” of choices, speech, and policy across the board, wherever they offended against a multiplicity of belief systems, without the opportunity to raise, as it is now possible to raise under the RRA, the important defences of justifiable aim and proportionality.

As Lord Hope, one of the dissenting judges, remarks, “The case does not fit easily into the legislative pattern. It [the Act] was designed to deal with obvious cases of discrimination on racial grounds”. (para 183). But – as we will no doubt discover in future months and years – this case is far from unique and the number of “non-obvious” cases of racial discrimination will be cluster at the courts’ gates. Why should litigants complaining of religious discrimination not attempt to shoehorn their claims into the stricter Section 1 of the RRA – after all if it is so difficult to separate ethnicity from religious grounds in this case, why should those difficulties not apply in many other areas of a modern multicultural society? Lord Fraser’s 1983 description of the conditions for the concept of ethnicity are arguably too broad to be workable in this context: “(1) a long shared history…(2) a cultural tradition”; …. “a distinct community by virtue of certain [essential and non-essential characteristics”(Mandla v Dowell Lee 2AC 548). Into that definition, a myriad of religious communities could seek to enter and in order to avail themselves of the protection from discrimination under the inflexible edicts of Section 1 RRA which allows of no questions of motivation or justification.

Instead of allowing the loose definition of ethnicity to expand the scope of direct discrimination and thereby place a whole spectrum of well-intentioned forms of preferential treatment beyond the reach of possible justification, the House of Lords in both the majority and minority judgments have effectively called for a more nuanced approach to the question; but this is a matter for Parliament, not the courts, and in the mean time where religious status is coexistent with ethnicity, schools and other bodies caught by the RRA need to tread very carefully indeed.