In this case, the question for the Court was relatively straightforward: was the School’s admission criterion as to the matrilineal descent of the child based upon his ethnic origins? The answer was undoubtedly “yes” – “... it was because his mother was not descended in the matrilineal line from the original Jewish people that he was rejected”.
The JFS argued that the decision to decline admission was founded in the child’s Orthodox religious beliefs. The matrilineal descent was not primarily founded in ethnicity. The matrilineal line could stem from a female convert of any nationality and any ethnic background. Thereafter it could be further diluted by generations of non-Jewish male blood. The decision therefore to decline admission to the child in this case was not based upon his race. It was based upon “the religious status of the woman at the head of the maternal line and the religious status of the child at the end of the line”.
The Supreme Court did not accept this reasoning. They saw ethnic status and religious status as being virtually co-extensive. There was a dual nature to a conversion to Judaism: the first is an identification with the Jewish people; the second was the embrace of a religious destiny. A woman who converts to Judaism thereby acquires both Jewish religious status and Jewish ethnic status.
The question of indirect discrimination is more difficult and it was one which the Court was reluctant to discuss, both because the JFS case was a fairly straightforward one of direct discrimination and because the Supreme Court did not wish to become involved in analysing the policy granting “faith schools” the right to select pupils on religious grounds.
However, the consequences of Supreme Court’s decision were alluded to by Lord Phillips when he noted that concerns had been expressed that Jewish Schools will compel Jewish religious schools to admit non-matrilineal (and therefore non-Orthodox) pupils. The Court thought that this did not necessarily follow from its decision and pointed to the JFS having set up a new religious test on admissions, which included criteria covering “synagogue attendance, Jewish education and/or family communal activity”. Children with matrilineal descent will satisfy these criteria more readily than those who did not have matrilineal descent. As a result, the religious tests adopted by JFS runs the risk of indirect discrimination on the grounds of ethnic origin. Indeed, arguably any criterion which is founded in the Jewish matrilineal line arguably runs the risk of indirect discrimination on the grounds of race.
The JFS case therefore exposes tensions between two areas of equal rights: race and religion. A school established for orthodox Muslims, selecting on the grounds of religion, may find that its school roll is primarily of Asian ethnicity. Its religious selection criteria form a policy, criterion or practice which discriminate indirectly in favour of Asian children, and hence are indirectly discriminatory against non-Asian children. The Catholic school selecting on the grounds of religion may find that its roll is dominated by children of Irish or Polish national or ethnic origin. Its religious selection criteria have the effect of excluding children from other ethnic origins and hence are indirectly discriminatory.
The onus will fall on the school therefore to justify its decision. It may do so first through reliance on s50 Equality Act 2006, which exempts schools of a religious character from prohibitions on religious discrimination and thereby justifies selection on the grounds of religion. This would form part of the legitimate interest which prevents a claim of indirect discrimination from being established. The school must go further, however, in order to avoid a JFS-style challenge: it must show that the religious selection is necessary and proportionate.
The minority judges in the JFS case considered the question of indirect discrimination and produced robust arguments, which religious schools could adopt. The aim of the JFS was to instil Jewish values into Orthodox Jewish children. That aim is legitimate. Oversubscription criteria allowing for the admission of children considered to be Jewish by Jewish religious leaders could not be a disproportionate means of achieving the school’s legitimate aim.
Other “rights” are also relevant. State schools are covered by the equality duty imposed on all public authorities actively to promote good race relations. If the religious selection criteria have an adverse impact upon certain racial groups, can they ever be justified?
Schools would be advised to keep parents in mind in this area. The European Convention on Human Rights imposes on the State the duty, “in the exercise of any functions which it assumes in relation to education and teaching”, to “respect the rights of parents to ensure that (state) education is in conformity with their own religious and philosophical convictions”. The incorporation of the ECHR into English law through the Human Rights Act 1998 grants to parents a right to secure education for their children at schools which conform with their faith. The JFS case runs counter to the human rights of Orthodox Jewish parents who regard their Orthodox religious identity as stemming from the matrilineal line, to have their children educated as they wish in the Orthodox Jewish faith.
How should religious schools – and particularly state religious schools - react to the JFS decision? First, they should monitor the impact of its admissions policies on the ethnic make-up of the school. State schools are required to do so in any event under the Equality Duty. Second, schools should ensure that they have proper justification of their religious character. This should take the form of active and regular discussions, usually by the governing body, of its religious character, ethos and mission - which will form its legitimate aim; and of the proportionate and necessary means by which it effects that legitimate aim, through its admissions criteria and internal policies.
It was notable that the Supreme Court did not welcome being required to resolve the dispute in this case, partly because the question of the child’s admission had already been settled between the parties, but partly because the JFS’s admissions policy had worked for many years without being open to objection. The legal challenge and the intervention by interested parties before the Supreme Court have ensured that that admissions policy has had to change.
Ultimately, as Lady Hale noted, it is for Parliament to decide upon and resolve the tensions exposed by this case. That resolution may be through providing a defence of justification to direct discrimination claims, which, as Lord Phillips noted, is currently absent from English legislation. As the rights being discussed ultimately arise from the Acquired Rights Directive and other directives stemming from the EU, the matter may have to see amendments to those directives by the EU.
Stephen Hart is a senior solicitor at Winckworth Sherwood
