Denominational schools – Direct discrimination – Ethnic groups – Judaism

R (on the application of E) (appellant) v (1) JFS governing body (2) ­admissions panel of JFS (respondents) & (1) Secretary of State for Education (2) Brent London Borough Council (3) Office of the Schools Adjudicator (interested parties) & United Synagogue (intervener): R (on the application of E) (appellant) v Office of the Schools Adjudicator (respondent) & (1) JFS governing body (2) Brent London Borough Council (3) David Lightman (4) Kate Lightman (interested parties) & (1) British Humanist Association (2) United Synagogue (interveners): CA (Civ Div) (Lords Justice Sedley, Rimer, Lady Justice Smith): 25 June 2009

The appellant father (E) appealed against the refusal of his applications for judicial review [(2008) EWHC 1535 (Admin)] of decisions concerning the propriety and legality of the criteria governing admission to a Jewish school (J).

E was Jewish by birth and his wife (W) was Jewish by conversion. They wished for their son (M) to be admitted as a pupil to J. As J was an oversubscribed school, it was entitled to select pupils according to its admissions policy, provided the policy was lawful. The present policy was to give priority to children who were recognised as Jewish by the Office of the Chief Rabbi (the OCR) or were following a course of conversion approved by the OCR. The OCR did not recognise the validity of W’s conversion to Judaism because it was conducted in a progressive and not an orthodox synagogue. M, who was not following a course of conversion, was accordingly not eligible for admission to J. Since a child was regarded by the OCR (and others) as Jewish only if his mother was Jewish, M had been refused admission to J. E’s appeal against J’s decision was dismissed and his objection to the Office of the Schools Adjudicator was also rejected.

E applied for judicial review of those decisions on the ground that J’s admissions policy discriminated on racial grounds against children who were not of Jewish origin or descent through the maternal line. The judge dismissed E’s claims, having found that the criterion of being Jewish by virtue of Jewish matrilineal descent was not one of ethnic origin, so that J’s decision not to admit a child who did not conform within Jewish orthodox law to the requirement of Jewish descent in the maternal line did not contravene the Race Relations Act 1976. It fell to be determined whether J’s oversubscription admission criteria were unlawfully discriminatory. J contended that the criterion of choice was a religious and not a racial one: the OCR was concerned only to elaborate and apply the law of the Torah, and only those whom the Torah did not recognise as Jews were excluded. E submitted that that approach elided the grounds of an act with its motive, whereas what the legislation was concerned with was not its motive but its causation, and a religious motive would not excuse discrimination on racial grounds. E argued that what J’s admission test required was that W had to be regarded by the OCR as Jewish if M was to secure admission to the school, and being Jewish, however it was ascertained, meant being a member of an ethnic group.

Held: So long as a maintained faith school was undersubscribed, it could not use religious criteria to allocate places. Once it was oversubscribed, it could lawfully restrict entry to children whom, or whose parents, it regarded as sharing the school’s faith. No school, however, was permitted to discriminate in its admissions policy on racial grounds. Refusal of admission was plainly less favourable treatment within the meaning of section 1(1)(a) of the act. The question for determination, in a case such as M’s, was whether that was done on racial, as opposed to religious, grounds. While the theological origin and character of the OCR’s definition of Jewishness was accepted, that was only the beginning, and not the end, of the court’s inquiry. If an act of discrimination was done on racial grounds, its motive did not matter. M had been refused admission to J because his mother, and therefore he, was not regarded as Jewish. J had been perfectly open in giving that as the ground of non-admission. The theological reasons why M was not regarded as Jewish were not the ground of non-admission: they were the motive for adopting it. The refusal to admit M because he was not regarded as matrilineally Jewish constituted discrimination on racial grounds, Mandla (Sewa Singh) v Dowell Lee (1983) 2 AC 548 HL applied. Jews constituted a racial group defined principally by ethnic origin and additionally by conversion, and to discriminate against a person on the ground that he or someone else either was or was not Jewish was therefore to discriminate against him on racial grounds. The theological motive for the discrimination, whether benign or malign, made it no less and no more unlawful. That did not mean that no Jewish faith school could ever give preference to Jewish children but that eligibility had to depend on faith, however defined, and not on ethnicity. M's less favourable treatment amounted to direct discrimination on racial grounds for which J was answerable, James v Eastleigh BC (1990) 2 AC 751 HL applied.

Appeal allowed.

Dinah Rose QC, Helen Mountfield (instructed by Bindmans) for the appellant; Peter Oldham (instructed by Stone King Sewell) for JFS governing body & admissions appeal panel of JFS; Clive Lewis QC (instructed by the Treasury solicitor) for the Office of Schools Adjudicator; Tom Lindon QC, Dan Squires (instructed by Treasury solicitors) for Secretary of State for Education; no appearance or representation for Brent LBC; no appearance or representation for David Lightman & Kate Lightman; Lord Pannick QC, Ben Jaffey (instructed by Farrer & Co) for United Synagogue; David Wolfe (instructed by Leigh Day & Co) for British Humanist Association.