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Brief Counsel

So you want your child in that special school?

04 February 2010

In a decision that will be of general interest to parents, religious groups and educators; the United Kingdom’s new Supreme Court has recently considered the ability of a Jewish Faith School to refuse entry to a Jewish boy who did not meet the School’s definition of an ‘Orthodox Jew’.

The Supreme Court held by majority that this amounted to direct discrimination on the grounds of ethnic origins and was as a consequence illegal under United Kingdom law. 

While New Zealand’s equivalent legislation expressly precludes a similar result, the judgments of the Supreme Court provide an elegant discussion of the issues inherent in the provision of exclusive education, and the potential reach of anti-discrimination laws.

A question of faith or ethnicity?

In R v Governing Body of JFS [2009] UKSC 15; [2010] 2 W.L.R. 153, M was refused entry into the Jewish Free School (JFS), a condition of entry into which was that M be “Jewish” under a definition set by Orthodox synagogues.  This definition required M’s mother to be an Orthodox Jew at the time of M’s birth before he could classified as an Orthodox Jew: the rule of ‘matrilineal descent’.  Although M’s mother had converted to Judaism before M was born, it was not as part of an Orthodox synagogue and so she was not considered an orthodox Jew at the time of M’s birth.  Thus, while M and his parents considered him a Jew, JFS did not, and he was refused entry.

The question for the Supreme Court was whether this policy infringed the Race Relations Act 1976 (UK) which prohibits discrimination on racial grounds.  That Act defines “racial grounds” as including “ethnic origins”.  For the policy to infringe the Act, it would need to discriminate on the basis of ethnic origins, and not simply religion.  If it did so directly, the JSF admission policy could not be saved; if it did so only indirectly, then the admission policy could be valid if justified - that is, as a proportionate means of achieving a legitimate aim. 

A majority (5-4) of the Supreme Court held that the JFS policy constituted direct discrimination.  The leading judgment of the majority, delivered by Lord Phillip (notable for commencing with the text of Deuteronomy), held that the rule of matrilineal descent rendered the admissions policy not simply a matter of religion, but also ethnic origin.

While the minority were agreed that the rule of matrilineal descent was a religious definition to be decided according to religious law, not a question of ethnicity, the JFS’ policy nonetheless did not survive scrutiny.  JFS’s policy was indirect discrimination, because it had the effect of disadvantaging M and others who were not Orthodox Jews.  Of the seven Lords who considered this issue, only two were prepared to hold that the policy was justified discrimination: while it was universally accepted that providing an Orthodox Jewish education was a legitimate aim, JFS’ failure to consider alternative admissions policies that would preserve this character while minimising the indirect discrimination involved was fatal.

A matter for Parliament, for the Courts or for educational institutions?

Despite the result, each member of the Court was at pains to point out that should JFS’ policy fall foul of the Race Relations Act, it did not mean that the policy or JFS was “racist”.  The motives – if any – of JFS were strictly irrelevant.  It was simply a question of the inconsistency with the Act of the factual criteria of the policy.  The judgments were emphatic that religion schools occupy a legitimate place in society and provide valuable contributions; that JFS had a discriminatory policy (which, in fact, it had modified following M’s challenge) did not mean the school itself was discriminatory.

The Court also strongly expressed its aversion to having to deal with the proceeding at all.  The judiciary was not qualified nor mandated to intervene in matters of religion.  It was only the peculiarity of the facts – that the Jewish religion involved matters of ethnicity – that engaged the Race Relations Act, and the Court would not and could not abdicate its judicial function.  This is consistent with New Zealand’s approach to the justiciability of matters religious, as expressed in Marshall v National Spiritual Assembly of the Bahá’is of New Zealand Inc [2003] 2 NZLR 205 (HC) and Mabon v Conference of the Methodist Church of New Zealand [1998] 3 NZLR 513 (CA).

In the case of schools’ admissions policies, the New Zealand judiciary is spared similar concerns.  Section 58 of the Human Rights Act 1993 (which prohibits discrimination at educational establishments on both religious and ethnic grounds), provides that:

an educational establishment maintained wholly or principally for students of one sex, race, or religious belief, ... or the authority responsible for the control of any such establishment, does not commit [a breach of the Act] by refusing to admit students of a different sex, race, or religious belief ...

As a consequence, schools in the position of JFS are entitled to discriminate in their admissions policy, either on religious or ethnic grounds, and are not held to any requirement to act proportionately in pursuance of the aim of maintaining their particular institutional character in their policy.

It is a not infrequent habit of legislators to “let the courts sort it out”.  But the clear rule laid down by our Parliament that the question of — affirmative — discrimination should be left to the institutions avoids the uncomfortable spectacle of religious issues being litigated in the civil courts, with the personal consequences of litigation on schools, pupils and their parents.  Nonetheless, the decision of the Supreme Court, and JFS’ adoption of a more liberal admissions policy prior to the appeal to the Supreme Court by the school, illustrates the risk of over-exclusion in such admissions policies.  In addition, the Supreme Court’s judgments provide a rich rhetorical pool from which those who seek to challenge such policies (on moral, if not legal, grounds) can draw.

Our thanks to Tim Smith and Marcelo Rodriguez Ferrere for writing this edition of Brief Counsel.

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