JFS case at the Supreme Court

The Jewish Chronicle - - Front Page - BY SI­MON ROCKER

NINE OF the lead­ing judges in Eng­land and Wales this week grap­pled with the fraught ques­tion of who is a Jew as the le­gal dis­pute over en­try to JFS fi­nally reached the high­est sec­u­lar court, the new Supreme Court.

A three-day hear­ing be­fore a packed court­room opened on Tues­day with far-reach­ing im­pli­ca­tions not only for other Jewish schools but po­ten­tially for those of some other faiths as well.

Europe’s largest Jewish school is ap­peal­ing against a Court of Ap­peal rul­ing made this sum­mer that to of­fer places on the ba­sis of whether a child’s par­ent is Jewish amounts to racial dis­crim­i­na­tion.

But Lord Pan­nick, lead­ing coun­sel for JFS, told the judges — three of whom are be­lieved to be eth­ni­cally Jewish — that the school’s de­ci­sion was a mat­ter of re­li­gion, not race.

The le­gal action be­gan af­ter JFS orig­i­nally re­fused a place to a boy known only as M be­cause his mother’s Pro­gres­sive non-Or­tho­dox con­ver­sion was not recog­nised by the Of­fice of the Chief Rabbi.

“M failed to se­cure a place at the school be­cause and only be­cause of the re­li­gious cri­te­ria ap­plied by the Chief Rabbi as to who is a Jew,” Lord Pan­nick said. “Th­ese re­li­gious cri­te­ria do not de­pend on a per­son’s eth­nic­ity.”

Ac­cord­ing to the law, faith schools can give pref­er­ence to pupils on re­li­gious, but not racial, grounds. The Court of Ap­peal ruled that us­ing parental de­scent to de­cide en­try was un­law­ful be­cause Jews con­sti­tute an eth­nic group un­der the Race Re­la­tions Act.

But Lord Pan­nick con­tended: “There is a vi­tal dis­tinc­tion be­tween whether some­one is Jewish ac­cord­ing to Or­tho­dox re­li­gious prin­ci­ples and the dif­fer­ent ques­tion of whether some­one


“The re­fusal to of­fer a place at JFS to M was on the ground that he is not Jewish as a mat­ter of re­li­gion. JFS ap­plies the cri­te­ria stated by the Chief Rabbi, who is not con­cerned with whether a child is Jewish as a mat­ter of race, or eth­nic ori­gin, but is con­cerned with re­li­gious sta­tus.”


“The school does not give pri­or­ity to chil­dren whose fam­i­lies are ‘mem­bers of the Or­tho­dox Jewish re­li­gion’. In­deed, a child with no re­li­gious be­lief at all but born of a Jewish mother would be ad­mit­ted. This shows that the ground for the less favourable treat­ment is eth­nic ori­gins, and not re­li­gion or be­lief.” is Jewish in the sense of their eth­nic ori­gins un­der the Race Re­la­tions Act.”

For the first time since the start of the le­gal action in mid-2008, the words of M — who has since been ad­mit­ted to JFS — were heard in court in a writ­ten state­ment. An ac­tive at­ten­der at the Lon­don Ma­sorti syn­a­gogue to which he and his fa­ther be­long, he said that Ju­daism had been “part of who I am” since as long as he could re­mem­ber.

At his pre­vi­ous, non-Jewish school, he said, “I had al­ways been a bit of an odd one out be­cause of my Jewish be­liefs and val­ues.” On the one oc­ca­sion he had worn a kip­pah there, he had been “taunted”.

His mother — now di­vorced from his fa­ther — had been an Ital­ian Catholic who con­verted to Ju­daism through a Pro­gres­sive syn­a­gogue here be­fore their mar­riage. But since non-Or­tho- dox con­ver­sions are not ac­cepted by the Chief Rabbi, M is not Jewish ac­cord­ing to Or­tho­dox def­i­ni­tion.

A writ­ten state­ment was also handed in to the court by David Lightman, whose d a u g h t e r Maya was re­jected five years ago by JFS be­cause her mother’s Is­raeli Or­tho­dox con­ver­sion was also con­sid­ered in­valid by the Of­fice of the Chief Rabbi. Her mother Kate is head of English at JFS. “Maya re­mains very keen to at­tend JFS in the sixth form next year, if she is per­mit­ted to do so,” he stated. “For five long, hard and painful years, we have tried to fight for the right to send our child to the school of our (and her) choice.”

Such is the im­por­tance of the case that at one point there were 14 wigged coun­sel in court.

Apart from M’s fa­ther and JFS, five other or­gan­i­sa­tions were al­lowed to in­ter­vene — a record for an ap­peal — with both the Board of Deputies and the Depart­ment for Chil­dren, Schools and Fam­i­lies query­ing the Court of Ap­peal rul­ing in sub­mis­sions to the court.

At one point, Lord Phillips, Supreme Court pres­i­dent, asked whether some­one sent to the gas cham­bers be­cause their mother’s mother was Jewish was be­ing per­se­cuted on racial, or re­li­gious, grounds.

Later, the judges had to get their heads around the idea that some­one might go to syn­a­gogue weekly, cel­e­brate fes­ti­vals and eat kosher — but might still not be re­li­giously Jewish ac­cord­ing to the Chief Rabbi.

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