New Judgment: R (E) v Governing Body of JFS  UKSC 15
16 Wednesday Dec 2009
On appeal from:  EWCA Civ 626
A panel of nine Justices of the Supreme Court determined that a criterion in an oversubscription policy of a faith school which gave priority to those regarded as ‘Jewish by birth’ constituted racial discrimination under the Race Relations Act 1976. The facts were that M, a child, was refused admission to JFS, because he was not regarded as Jewish by the Office of the Chief Rabbi. He was not regarded as Jewish because, despite his Jewish faith and practice, and despite the fact that his father (E) was Jewish by birth, he was not descended from a woman whom the Chief Rabbi regarded a Jewish. His mother was not born Jewish, but had converted to Judaism before M’s birth. However, the Office of the Chief Rabbi did not recognise the mother’s conversion to Judaism as it was not conducted in an Orthodox synagogue. The argument was as to whether the oversubscription criterion constituted direct discrimination on grounds of M’s ethnic origin; or indirect discrimination which was not proportionate and so not objectively justified. The Court of Appeal had held that this amounted to direct race discrimination.
The Supreme Court dismissed the appeal by JFS. On the direct discrimination issue, the decision was by a majority of five (Lord Phillips, Lady Hale, and Lords Mance, Kerr and Clarke) to four (Lords Hope, Rodger, Walker and Brown). The majority held that the admissions policy of the state maintained school directly discriminated on racial grounds against child M, and others like him. Lords Hope and Walker in the minority would have dismissed the appeal on the ground that JFS had indirectly discriminated against M as it had failed to demonstrate that its policy was proportionate. Lords Rodger and Brown would have allowed JFS’s appeal in its entirety. The Supreme Court unanimously allowed in part the United Synagogue’s appeal on costs.