| EDUCATION — School — Admissions — Faith school — Priority for children of designated faith — Whether direct or indirect racial discrimination — Race Relations Act 1976, s1A (c) (as inserted by reg 3 of the Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003 No 1626)
R (E) v Governing Body of JFS and Others [2008] EWHC 1535/1536; [2008] WLR (D) 223
R (E) v Office of the Schools Adjudicator and Others; Munby J: 3 July 2008
Faith schools which gave priority to children of their designated faith in the event of over-subscription did not directly or indirectly racially discriminate against non-members of the faith.
Munby J so held in dismissing applications for judicial review brought by E, inter alia, from the decision of the governing body of JFS refusing to offer a place at JFS to E’s son, M, and the dismissal of E’s appeal by the appeal panel. The judge granted declaratory relief that the school had failed to comply in full with the requirements of s 71 of the Race Relations Act 1976 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 Masorti Synagogue. He considered himself to be of Jewish ethnic origin, of the Jewish faith and a practising Jew. His former wife 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. 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. The mother was satisfied that M did not fulfil JFS eligibility criteria for admission and had given her consent to M attending another school where she said he was settled.
MUNBY J said, on the question whether JFS was guilty of racial discrimination contrary to the 1976 Act, that the simple fact was that the admissions policy was based on religious and not on racial (ethnic) 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 next question concerned indirect race discrimination. That was not peculiar to Jewish schools. 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, given that every religion that had a faith school was disproportionately represented among some ethnic groups over others. 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 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? JFS’s admissions policy could comfortably be justified as being a “proportionate means of achieving a legitimate aim”, within the meaning of s 1A(c) of the 1976 Act (as inserted by reg 3 of the 2003 Regulations). S 71 of the 1976 Act was engaged. 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. The complaint based on s 71 could not however be properly laid at the door of the appeal panel. It was for JFS to comply with the section; not for the appeal panel to embark upon an investigation as to whether or not JFS had done so.
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