Guardian | Wednesday 16 December 2009 | 11.27 GMT
One of Britain’s most successful faith schools lost its appeal today to overturn a ruling that it had racially discriminated against a 12-year-old boy. In a landmark legal decision, judges at the Supreme Court found the Jewish Free School, a comprehensive in north-west London, had broken the law by refusing to admit the boy, known as M. It had denied the boy, who is a practising Jew, a place because it has twice as many applicants as it can take and prioritises children whose mothers are recognised as Jewish by the chief rabbi. M’s mother converted from Catholicism to Judaism under a non-Orthodox authority, which means she is not recognised as Jewish by the chief rabbi. The chief rabbi only recognises children as Jewish if he recognises their mothers as Jewish.
M’s father took the school to court claiming racial discrimination. In June, the court of appeal ruled in his favour. It said the school’s policy amounted to racial discrimination because it prioritised applications from children with Jewish mothers. But the school appealed and took the case to the Supreme Court. Critics say today’s ruling has meant secular jurists are deciding who is Jewish and who is not. The ruling will lead to children who apply to one of the UK’s 50 Jewish schools having to sit religious practice tests to ensure the schools are not discriminating against children on ethnic grounds. It is also likely to lead to a revision of faith schools’ admissions policies. Lawyers said it was the most controversial ruling since the Supreme Court was created in October. The Supreme Court judges ruled by a majority of five to four that the school had “directly discriminated against M on grounds of his ethnic origins” and was in breach of the Race Relations act.
Reading out the judgment, Lord Phillips, president of the Supreme Court, said: “The supreme court has dismissed the appeal by the governing body of JFS. The majority held that JFS had directly discriminated against M on grounds of his ethnic origins.” Lord Phillips added that the judges did not consider the chief rabbi to be racist. The judgment “should not be read as criticising the admissions policy of JFS on moral grounds, or suggesting it was ‘racist’ in the pejorative sense,” he said. M’s father, who cannot be named, said: “I believe it’s important for people to know that the same Race Relations act that provides such valued protection for Jews, as well as others, from ill-judged or misguided prejudices also provides for the fair and equal treatment of all children within our education system.
“It is very important to see that this essential protection was not mistakenly discarded by divisive views which can naturally occur from time to time within all communities. The Jewish community, which has long endeavoured to enshrine fairness and care for others, will be relieved at heart that this minor discord will be put aside and that we, like all God’s children and people of true feeling, can pull together again and work to make a better and fairer world for all.” But the United Synagogue, which represents Orthodox Jews in the UK, said it was “extremely disappointed” with the ruling which “interfered” with the “Torah-based imperative on us to educate Jewish children, regardless of their background.” Its president, Simon Hochhauser, said: “Essentially, we must now apply a non-Jewish definition of who is Jewish.”
Trevor Phillips, chair of the Equality and Human Rights Commission, said the verdict confirmed that “no school will be allowed to discriminate based on the ethnic origin of an individual.” The British Humanist Association said the verdict should trigger an investigation into all state faith schools’ admissions policies. Andrew Copson, the BHA’s director of education and public affairs, said: “There’s absolutely no reason why what is essentially a public service should be denied to any children, whatever their beliefs or the beliefs of their parents.” Rabbi Jonathan Romain, chair of the Accord Coalition, which campaigns for inclusive education, said he hoped the ruling would serve as a “wake-up call” to faith schools to stop discriminatory policies. The chairman of governors at JFS, Russell Kett, said that the Supreme Court judges had suggested “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.” A third of England’s state schools are faith schools.