Can Religion be Racially Discriminatory?

The JFS (Jews Free Schools) are part of a growing number of faith schools in the UK. They are entitled, once oversubscribed, to select pupils who conform to their religion; in JFS’s case, Judaism. The JFS exercised an admissions policy based upon what the Office of the Chief Rabbi (OCR) considered to be Jewish. This test required that the Mother of a prospective pupil be either born Jewish, or had converted prior to the student’s birth to Judaism through an Orthodox Synagogue; pupils applying after oversubscription who did not meet this test were liable to be refused.  A thirteen year old boy, ‘M’, was refused entry to the North London JFS because his Mother had converted from Catholicism to Judaism after he was born at a progressive synagogue; a subsequent appeal to the Admissions Appeals Panel failed.

M’s Father, ‘E’, sought a judicial review of this decision, contending that it was either (1) direct racial discrimination or, (2) indirect discrimination. The Supreme Court, affirming the Court of Appeal’s decision, on a 5:4 split, found the JFS admissions policy to amount to direct racial discrimination, and was thus unlawful. The minority, believed the policy to be based on religious, and not racial tests; two of whom found there to be indirect discrimination, and two found there no discrimination whatever. The policy was declared unlawful.