State Schools and Religious Authority: Where to Draw the Line?

Abstract

In December 2009 the Supreme Court by the narrowest of margins (5 to 4) found against the Governing Body of JFS (formerly called the Jews' Free School) on the basis of direct race discrimination. Consequently, schools run by Jews, Sikhs and any other faiths that happen also to be an ‘ethnic group’ are barred from giving priority to children who are members of that faith. As is well known, the very broad definition of ‘ethnic group’ was set by the House of Lords in Mandla v Dowell-Lee at a time when the protections afforded by the more recent laws against religious discrimination were lacking. The majority in the Supreme Court evidently, and with some justification, considered that this definition was sufficiently settled law that only a legislative, and not a judicial, intervention could alter it. In contrast, those faiths and denominations that avoid falling into the Mandla trap, may continue to give priority to their members in admission to their schools. A number of commentators have confidently predicted that this case does not therefore affect most other schools with a religious character. Such a conclusion may be somewhat hasty. The minority held that this was a case of indirect, rather than direct, discrimination and, as such, potentially subject to justification. Perhaps the most surprising element of the judgment is that, unlike Mumby J at first instance, a majority of the Justices did not find it self-evident that a Jewish school giving priority to Jewish applicants in its admissions policy was a proportionate means of pursuing a legitimate aim.