Schools admissions policy found unlawful
Discrimination law and charity custom and practice came head to head when...
...the recently established Supreme Court (which replaces the House of Lords in its judicial capacity) found a Jewish school guilty of racial discrimination.
JFS (formerly the Jews’ Free School) had refused to admit a pupil to the school as it was applying its oversubscription policy of giving precedence in admission to children recognised as Jewish by the office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (‘the OCR’). This only recognises a person as Jewish if that person is descended in the matrilineal line from a woman whom the OCR recognises as Jewish or if that person has undertaken a qualifying course in orthodox conversion. The pupil’s mother was of Italian and Catholic origin, had converted to Judaism but the conversion was not recognised by the OCR and therefore the pupil failed the admissions test. The pupil’s parents took the school to court.
The High Court rejected claims of direct discrimination under the Race Relations Act 1976 and that the policy itself was indirectly discriminatory. But the Court of Appeal unanimously reversed this decision and the pupil was allowed to join the school after this ruling. JFS went to the Supreme Court which gave its decision on 16 December 2009 – the entire admissions policy was at stake.
The court sat with a full complement of nine judges because of the importance of the issue and decided by a majority of five to four that the school breached race relations legislation and it concluded that Jewish schools had been operating an unlawful admissions policy for more than 30 years.
Sue Ashtiany at Nabarro observes that the court has reinforced the view that direct discrimination can and does occur irrespective of the motives or intentions of the discriminator. Supreme Court president, Lord Phillips accepted that the ruling risks upsetting a policy of admission to Jewish schools that, over many years, has not been considered to be open to objection, pointing out that ‘there may well be a defect in our law of discrimination’ because it provided no defence of justification. Amnesty International ran into a similar problem when Ms B Ahmed was not promoted to a role working in Sudan on grounds of a risk to her safety because of her ethnic origin (see Caritas, issue 25, December 2009, page 4).
Ashtiany believes this raises huge issues for all faith schools: ‘This decision could certainly open the way for challenges to other faith schools. What about Muslim schools that only allow girls in who are covered up – a requirement, which is not applied to boys. Could a more free-thinking but devout female Muslim challenge such a school? And what about schools that discriminate in their teaching on religious grounds against gay people? Could a gay pupil or the parent complain of sexual orientation discrimination? Will faith schools now seek exemptions for their practices under the race relations law? And should they be allowed to discriminate, if others cannot? The decision may also eventually lead the way to a different type of anti-discrimination law that targets real racism or sexism.’
Author: Clarissa Dann
Clarissa Dann was the editor of Caritas as well as an HR and management online service,he People Bulletin until July 2011.
She is now the editor of the specialist trade finance magazine, Trade and Forfaiting Review which can be viewed at www.tfreview.com but does write on charity finance and investment from time to time.
Clarissa has a background in legal and professional publishing, as well as business journalism and holds an MBA from
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