THE BOUNDARIES BETWEEN RACE AND FAITH
The ruling that a Jewish school’s admissions criteria is unlawful raises questions about the scope of race discrimination…
It’s been an interesting week for the Race Relations Act. I won’t make any friends by mentioning the admissions criteria of a Jewish school – declared unlawful by the court of appeal today – in the same breath as the BNP, but both raise fundamental questions about the acceptable scope of discrimination based on race.
M, a 12-year-old boy, was refused admission to JFS – a school in North London which describes itself as having “a religious character in accordance with the principles of Orthodox Judaism”.
Although M’s mother had converted to Judaism, her conversion was not recognised by the chief rabbi and so the boy, despite considering himself Jewish and regularly attending a progressive synagogue, was not recognised by the school as Jewish either.
This was, JFS argued, in line with an exemption from the Race Relations Act which allows faith schools to discriminate on grounds of religion. But in a rare outing by the court of appeal into the field of defining “race”, it decided today that a decision based on a child’s descent, rather than their own religious practice, is a racially discriminatory one.
And, Lord Justice Sedley added, “it appears clear to us … that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion”. .
“To discriminate against a person on the grounds that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds.”
It goes without saying that this judgment will be regarded as a controversial one. The boundaries between race and religion are far from straightforward – and in any case capable of being a subjective and personal element of an individual’s identity. There is something inherently jarring about a definitive finding on such a sensitive subject coming from a group of judges.
But even if there is disagreement about what “race” means, it is generally accepted that we need laws which prohibit discrimination on the grounds of race. If racism masquerading as religious discrimination could evade these rules, then the protection they offer would be meaningless.
“A person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly without breaking the law”, Sedley pointed out, in another comparison that will probably not be welcomed by Jewish groups.
Although rare, the courts have been called on to elaborate the scope of the Race Relations Act before. In 1983 then law lord Lord Fraser, considering whether Sikhs were a racial as well as religious group, said in the House of Lords, “It would be absurd to suppose that parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics.”
Today’s decision shows that the courts will still be called upon to answer these questions, and though many will balk at the idea, the alternatives are not defining race at all, or employing some pseudo-scientific criteria instead.
Not to define race at all would make the laws protecting people from discrimination useless. And as for scientific, biological-type definitions … as well as being firmly rooted in nonsense, we all know what happened last time those were deployed in earnest.