Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel

Abstract

Two separate Israeli Supreme Court cases led to decisions in which a Christian school in Nazareth was permitted to deny admission to a Muslim student who insisted on coming to school with her headscarf, while an Ashkenazi ultra-Orthodox school in Immanuel was not permitted to exclude Sephardic students from its ranks. Intriguingly, the Israeli Supreme Court reached these apparently contradictory holdings by reference to the same liberal ideals of equality and commonality. The article analyzes both holdings to show that the Court’s resolutions cannot stand on their own terms. To reconcile these outcomes it is necessary to locate the groups involved within the religious and ethnic power structure in Israel, and to determine the legal and social significance of defining the group as a minority or as a majority. The analysis of the particular cases draws on the controversy over the use of headscarves in public schools in Europe, and the legacy of Brown v. Board of Education in the United States, in order to propose a new means of evaluating the legitimacy of group accommodation in general. The principle is to ascertain whether it is the hegemonic or the subordinate group that is seeking to be separate. In general, we should be more tolerant of exclusionary measures practiced by a minority than when practiced by the majority. Ultimately, a constitutional evaluation committed to basic individual freedoms cannot refer to the individual without her or his group.