Queen’s Bench Division
Published July 18, 2008
Regina (E) v Governing Body of JFS and Others
Regina (E) v Schools Adjudicator and Others
Before Mr Justice Munby Judgment July 3, 2008

Faith schools which gave priority to children of their designated faith in the event of oversubscription did not directly or indirectly racially discriminate against non-members of the faith.

Mr Justice Munby so held in a reserved judgment in the Administrative Court of the Queen’s Bench Division when dismissing applications for judicial review brought by the claimant, E, against the refusal of the governing body of JFS, the Jewish Free School, on April 13, 2007, to offer a place at the school to E’s son, M, and the dismissal by the appeal panel on June 11, 2007, of his appeal.

The judge also dismissed a second application challenging the Schools Adjudicator determining E’s objection. The judge did grant declaratory relief that the school had failed to comply in full with section 71 of the Race Relations Act 1976 requiring it to eliminate unlawful racial discrimination and promote equality of opportunity and good relations between people of different racial groups.

E was a member of a conservative Masorti Synagogue. He considered himself to be of Jewish ethnic origin, of the Jewish faith and a practising Jew. M’s mother was of Italian national and ethnic origin. Before she married E she was converted to Judaism under the auspices of a progressive synagogue.

JFS admitted children who were recognised as Jewish by the Office of the Chief Rabbi, who was orthodox. M’s mother’s conversion was not recognised by that office and so M was not recognised as Jewish.

M’s mother was not a party to the proceedings; she was satisfied that M did not fulfil JFS eligibility criteria for admission and had given her consent to his attending another school where she said he was settled.

Miss Dinah Rose, QC and Miss Helen Mountfield for E; Mr Peter Oldham for JFS; Mr Rabinder Singh, QC and Mr Dan Squires for the Secretary of State for Children Families and Schools, as an interested party; Mr Ben Jaffay for the United Synagogue, intervening; Mr David Wolfe for the British Humanist Association, intervening; Mr Clive Lewis, QC for the Schools Adjudicator by written submissions.

MR JUSTICE MUNBY said that the case involved questions in the context of a dispute within the Jewish community but they were important to people of all religions because they impacted potentially upon faith schools of all denominations.

His Lordship sat as a secular judge. Religion was not the business of government or of the secular court, although the courts would pay every respect to religious belief. However, it was important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, could never of itself immunise the believer from the reach of the secular law. And invocation of religious belief did not necessarily provide a defence to what was otherwise a valid claim.

The most important of the matters canvassed was E’s complaint that JFS was guilty of racial discrimination contrary to the 1976 Act. The simple fact, in his Lordship’s judgment, was that JFS’s admissions policy was, as the Schools Adjudicator correctly found, based on religious and not on racial grounds, reflecting, as it did, a religious and not an ethnic view as to who, in the eyes of the Office of the Chief Rabbi, was or was not a Jew. The claim based on alleged direct race discrimination failed.

The next question concerned indirect race discrimination. That was not peculiar to Jewish schools. As Mr Singh accepted, a similar outcome was likely to be the case for every faith school which gave priority to members or adherents of one faith over another.

Mr Singh correctly submitted that faith-based admission criteria generally pursued a legitimate aim. Government policy, endorsed by Parliament, had for many years been to allow faith schools to give priority in admission to those of their designated faith. If faith-based admission criteria were no longer to be allowed, that was a matter for Parliament.

The core aim of JFS was to educate those whom it, in common with the Office of the Chief Rabbi, considered to be Jews, irrespective of their practice or observance, and in an ethos which was avowedly Orthodox Jewish.

If, as Mr Singh correctly argued, it was legitimate for a Muslim school to give preference to those who were born Muslim, or for a Catholic school to give preference to those who had been baptised, even if they had fallen away from the faith, with the aim of educating them in an appropriate religious ethos, then why should it not be equally legitimate for a school like JFS to give preference to those whom it treated as Jews even if they had fallen away from, or had never known the faith?

In his Lordship’s judgment, JFS’s admissions policy could comfortably be justified as being a “proportionate means of achieving a legitimate aim” within the meaning of section 1A(c) of the 1976 Act, as inserted by regulation 3 of the Race Relations Act 1976 (Amendment) Regulations (SI 2003 No 1626).

Section 71 of the 1976 Act was engaged. In his Lordship’s judgment, JFS, despite good intentions embodied in its race equality policy, failed to comply in full with the section. E was entitled to a declaration to that effect. However, the breach did not entitle him to any other relief against JFS.

Solicitors: Bindman & Partners; Stone King LLP; Treasury Solicitor; Farrer & Co; Leigh Day & Co; Treasury Solicitor.

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