JFS Judgment: Full Marks Or A Fail?

Friday 3rd July 2009


Community leaders David Frei of United Synagogue and Liberal Judaism's Rabbi Danny Rich discuss the issues surrounding last week's ruling declaring JFS must alter its admissions policies

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David Frei is director of legal and external services for United Synagogue:

Amid the mass of media attention over the past week since the Court of Appeal Judgment in the JFS case, readers could be excused for being confused as to what was actually decided by the court.

Perhaps one should begin with what was not decided.

The court did not pronounce on Jewish conversion procedures or on the differences in the conversion process between the different Jewish denominations. What the court was asked by the appellant to do (and what the court effectively did) was to declare that the admissions policy of the JFS (and it therefore follows, of most other Jewish schools) is unlawful, as being contrary to the Race Relations Act 1976.

A core belief of Judaism is found in the shema: That you should teach Torah to your children. JFS, and all our other Jewish schools, work to fulfil this mitzvah; educating all Jewish children. There are two principles here, that of education and that of the definition of who are Jewish children, and it is vital that as Jews, we fight to ensure we are entitled to continue to educate, and to define who a Jew is. JFS, in common with all other Jewish schools, seeks to fulfil this mitzvah by educating Jewish children, that being its raison d'ętre.

It is lawful in this country for any faith school to discriminate in favour of children of its own faith. Just as a Christian school may prefer Christians to non-Christians, a Jewish school is entitled, when over-subscribed, to give preference to Jewish pupils.

The difficulty arises in defining what "Jewish" means.

The Jewish religion provides that one is Jewish if born to a Jewish mother (or for Liberal Judaism, a Jewish parent) or if one completes a recognised course of conversion. Once one can establish membership of the Jewish faith in this way one is regarded by our religion as being inalienably Jewish. There has never been a requirement that a Jew must prove himself to be a Jew by a particular act of worship or rite of initiation.

The Talmudic concept of "tinok shenishba bain Hagoyim" a Jewish-born child who was captured in infancy and was therefore wholly ignorant of the precepts of Judaism, illustrates this point. Such a child is as much a Jew as the High Priest. JFS has opened its doors to all halachic Jews , regardless of their current level of observance in the belief that all of its pupils are as religiously obligated to observe the mitzvot, and learn about and practise their faith, as are any other Jews.

The Court of Appeal has now ruled that neither JFS nor any other Jewish school can base its admissions criteria on a child's Jewish status. They deem this to be racial discrimination within English law, as a child with a Jewish mother (or a Jewish father in the case of the Liberals) will have an advantage over a child without Jewish parents. Instead, the court wants us to define "Jewishness" by another test relating to Jewish practice. This could lead to the absurd result that children who are not regarded as Jewish by any denomination, are given preference over Jewish children whose families do not practise.

The impact of the ruling is not restricted to education and may also affect other areas of communal life, where services are provided to the Jewish community.

A regrettable aspect of the decision were the parallels implied by the judges' remarks citing the Dutch Reformed Church in apartheid South Africa, which did not allow non-whites to join. Judaism does not discriminate on the basis of colour or race. Converts to Judaism come from every religion, nation, race and creed. There are Jews by conversion and descent of all colours and races.
It is fundamental that our religion should not be branded as racist and that we as a religion, should have the same rights as other faiths, in being able to define who is an adherent of our religion, in accordance with our traditional, religious precepts.

It is for these reasons that the United Synagogue has intervened in the JFS proceedings and will support the school's appeal to the House of Lords.

*

Rabbi Danny Rich is chief executive for Liberal Judaism:

Let me first declare an interest. My paternal grandfather and his brother, who were among the founders of Liberal Judaism in South London in the second quarter of the 20th century, were both teachers at the Jewish Free School (JFS), and I have long argued that the admission policy of the School is both wrong and politically motivated - and ought to be overhauled.

It is perhaps ironic that, for reasons with which I am not wholly sympathetic, a recent decision of the Appeal Court may force the hands of the governors. In a unanimous judgment, Lord Justices Sedley and Rimer and Lady Justice Smith concluded that Child M was treated less favourably on racial grounds when JFS refused to admit him because, whilst his father was Jewish, his mother was not considered Jewish despite living a Jewish life on the grounds that her conversion took place under the auspices of a Progressive Synagogue.

The JFS (and the United Synagogue which apparently spent Ł150,000 as an Intervener in the case) brought this decision upon itself by continuing to operate a politically motivated criterion for admission whereby it will only accept children who are Jewish by reference to a definition of the Office of the (United Synagogue) Chief Rabbi which excludes the children of Jewish fathers and the children of mothers who have converted through the Liberal, Masorti and Reform movements from their rightful place in a Jewish state comprehensive school funded by the taxpayer.

Many parts of the Jewish community have gone into panic mode, partly in an effort to raise funds to pay legal fees for an appeal to the House of Lords. The spectre has been raised that no Jewish school, synagogue or charity, including Jewish Care, will be safe from the implications of the ruling such that Jewish institutions will be overwhelmed by non-Jewish applicants who have a sudden interest in their children learning to lay tefillin or their grandparents receiving a kosher diet in their twilight years.

The truth is, of course, that nothing of the kind is envisaged although we may all need to amend our admission criteria to reflect compliance with the judgment which essentially permits discrimination on religious grounds (belief or practice for example) but not on racial (parental background) ones.

The principle that it is identity, upbringing and education rather than biology which should identify who is a Jew is pretty close to the Liberal Jewish understanding of inclusion whereby Liberal Jewish congregations do their utmost to include those who want to identify with - or join - the Jewish community, setting measures of sincerity, commitment and knowledge above historical prejudice, biological background or obscure verses in the Torah.
One of the intervening parties to the case was Orthodox couple, David and Kate Lightman, whose child was refused admission to the JFS because Kate, ironically a former head of English at the school and an Orthodox convert, is married to David. David is a Cohen, a member of the priestly caste who might one day have a minor role in a restored third temple in Jerusalem. Tradition forbids a Cohen marrying a divorcee or a convert.

If an artistic director had attempted to put on such a script, we Jews would probably not have got the joke. Instead, we have made ourselves a laughing stock. Perhaps it is not yet too late for the state funded JFS to redeem itself and offer its fine education to Jews of all types rather than involve its admissions criteria in the sometimes unedifying realm of communal politics.

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