R (on the application of E) v Governing Body of JFS
The 1976 Race Relations Act (RRA) outlaws discrimination on the ground of someone’s colour, race, nationality or ethnic or national origins. In R (on the application of E) v Governing Body of JFS, the Supreme Court said that the admissions policy of a school that gave priority to children recognised as Jews under an Orthodox test was discrimination on the ground of ethnic origin and therefore contrary to the Race Relations Act (RRA).
Basic facts
JFS is an extremely popular school which adopted an admissions policy of giving preference to children recognised as Jewish by the Office of the Chief Rabbi (OCR). It said that only those children whose mother was Jewish or who had converted to Judaism via the Orthodox route would be admitted if the school was oversubscribed.
A Jewish man (called E) applied to the school on behalf of his son, M, but was rejected on the ground that his wife was not Jewish. Although she had converted to Judaism, she had done so in a non-Orthodox synagogue and therefore did not satisfy the OCR test.
E claimed that the policy directly discriminated against his son contrary to section 1(1)(a) of the RRA. The High Court rejected his claim, but the Court of Appeal overturned that decision. JFS appealed to the Supreme Court.
Relevant law
Section 1(1)(a) RRA states that is is racial discrimination if on “racial grounds” a person “treats the other less favourably than he treats or would treat other persons...”
Section 3(1) states that ‘racial grounds means any of the following grounds, namely colour, race, nationality or ethnic or national origins.”
Supreme Court decision
The Court had to decide whether the admissions policy constituted direct discrimination on grounds of M’s ethnic origin or indirect discrimination which was not proportionate and so not objectively justified. The court concluded that M had been subjected to direct discrimination. It said that, when trying to decide whether there has been direct discrimination, it had to ascertain whether M’s ethnic origins were the reason for refusing him admission. If so, the motive for the discrimination was irrelevant.
It stated that treating an individual less favourably because they lacked certain prescribed ethnic origins constituted direct discrimination. There was no logical distinction between this and less favourable treatment towards someone because they did possess those certain ethnic origins.
Because M was not descended “in the matrilineal line” from a woman recognised by the OCR as Jewish, he could not gain admission to the school. The crucial question, therefore, was whether this requirement could properly be characterised as referring to M’s ethnic origins.
The test applied by JFS focused on the ethnicity of the woman from whom M was descended. Although women could convert to Judaism in a way that the OCR would recognise, the Court said that requirement itself represented a significant burden that did not apply to those “born with the requisite ethnic origins”.
It stated that direct discrimination on grounds of ethnic origins under the 1976 Act did not just include adverse treatment based upon membership of an ethnic group which shared a long history, culture and religion. It also encompassed discrimination on the basis of someone’s ethnic origins in a narrower sense, including a person’s lineage or descent. Effectively the court said that reliance on the OCR rules to determine a child’s Jewishness implied a reference to ethnic origin prohibited under the Act.
The Court concluded that the test applied by JFS and the OCR clearly focused on genealogical descent from a particular people, enlarged from time to time by converts, and was therefore based on M’s ethnic origins.
This conclusion was buttressed by the underlying policy of the 1976 Act, which was that people must be treated as individuals and not be assumed to be like other members of a group. Treating an individual less favourably because of their ancestry ignored their unique characteristics and attributes and failed to respect their autonomy and individuality.
The fact that the rule adopted was of a religious character could not obscure or alter the fact that the content of the rule itself applied a test of ethnicity and was contrary to the RRA.