Le·gal In·sur·rec·tion

A court in Great Britain has found that a religious Jewish school engaged in racial discrimination by applying the traditional definition of who is a Jew as part of its admissions policy.

Traditionally, whether one is Jewish is determined by maternal lineage. If one's mother is Jewish, one is Jewish. When the mother is a convert to Judaism, Orthodox Jews consider the child Jewish only if the conversion was in accordance with Orthodox conversion practices. Among non-Orthodox Jews, at least in the United States, the test is completely muddled, and among progressive Reform congregations, the standards for conversion are quite lenient.

In the case at issue, reported in The Independent, the Orthodox religious school gave preference in admissions to students who were Jewish using the Orthodox definition and standards for conversion. The school denied admission to a student whose mother had converted at a Progressive synagogue. The Court held that such preferences were discrimination on the basis of race:

In a far-reaching judgment, three judges found the well known JFS (formerly the Jews' Free School) in Brent, north-west London, racially discriminated against a 12-year-old boy by denying him a place at the school because his mother was not a recognised Jew.

The ruling was immediately attacked by the Chief Rabbi, Jonathan Sachs, who said he supported an appeal to the House of Lords to try to overturn the judgment so that Jews could "be true to the Jewish faith" by upholding the existing criteria for membership of the Jewish religion.

JFS argued that its admissions policy giving preference to Jewish children when the school was oversubscribed was lawful because it was based on religious and not racial criteria.

But the judges said that "the requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or by conversion, is a test of ethnicity which contravenes the Race Relations Act".

The Times of London has further background on the story. The case has become a prominent cause for left-wing activists:

The British Humanist Association (BHA) has announced that it is intervening in the potentially landmark court case against the JFS (formally the Jewish Free School) for alleged racial discrimination which begins today....

The intervention by the BHA alleges that the admission policy of JFS is not only unlawful under the Race Relations Act but also the Human Rights Act (HRA) on the grounds that the HRA has made such religious discrimination in the provision of state education illegal. The European Convention of Human Rights prohibits discrimination on the grounds of status (whether race or religion) in access to state funded reducation, unless it is a proportionate means of meeting a legitimate aim.

Andrew Copson, BHA Director of Education and Public Affairs said, ‘Laws designed to protect the exclusive admissions policies of state-funded religious schools do not override the Human Rights Act and there is no evidence that school ethos is damaged by more inclusive admissions policies.

The case is significant in at least two respects. First, the case raises the issue of whether Judaism is a race or a religion, or both. Because Judaism follows a maternal lineage, the argument goes that Judaism is a race. And some studies have found common DNA among Jews from different parts of the world.

But Judaism is not a race in the normal sense of the word, because there are Jews of every racial group, and there is nothing to prevent persons of any race from converting. This ambiguity is exploited not only by left-wing groups such as BHA, but also anti-Israeli groups and academics who claim that preserving Israel as a Jewish state is "racist."

Second, the case shows the danger to traditional religion from potential interference by the state under the guise of anti-discrimination laws. And in that arena, there are hard choices. Few would question that religious schools, particularly if they receive state funding, should not discriminate on the basis of skin color. But at what point do such laws actually intrude on the legitimate practice of religion, such as how a religious group defines its own membership?

To me, the British case goes too far. The alleged discrimination had nothing to do with racial characteristics, such as skin color, but with the traditional use of parentage (regardless of race) as a determinative factor.

We can expect the illogic of the British case to be exploited, nonetheless, as a further excuse for boycotts of Israeli goods and academia which already are taking place in the United States based on charges that preserving the Jewish nature of Israel is "racist."

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