E v The Governing Body of JFS & Anor

Faith-based admission criteria may lawfully distinguish between members of a religion by reference to religious status rather than religious observance. A criterion based on Jewish status under Orthodox religious law is not, merely because it involves descent, discrimination on grounds of ethnic origin.

Indirect racial disadvantage may nevertheless arise where a faith school’s criteria disproportionately favour particular ethnic groups. The school must show that the criteria are a proportionate means of achieving a legitimate aim. A public body subject to section 71 of the Race Relations Act 1976 must give due regard to eliminating unlawful racial discrimination and promoting equality of opportunity and good relations. A general equality policy alone is insufficient.

The claimant challenged JFS’s refusal to admit his son and the dismissal of his appeal. He also challenged the Schools Adjudicator’s decision concerning JFS’s oversubscription criteria. The challenges concerned direct and indirect racial discrimination, compliance with the school’s religious character and the School Admissions Code, delegation to the Office of the Chief Rabbi, the Appeal Panel’s jurisdiction and procedural fairness, and compliance with section 71 of the Race Relations Act 1976.

The child was not recognised as Jewish under Orthodox Jewish law because his mother’s conversion was not recognised by the Office of the Chief Rabbi. The central issues were whether the admissions policy operated on racial or religious grounds, whether any indirect racial disadvantage was justified, and whether the defendants had complied with their public law duties.

1. Direct discrimination. The refusal was based on the religious criterion of Jewish status under Orthodox Jewish law, not on Jewish ethnic origin. Jews constitute an ethnic group, but Jewish descent, Jewish status and Jewish ethnic origin are distinct concepts. Descent may be relevant to ethnicity in some contexts, but descent from a person possessing a religious status does not, without more, constitute ethnic origin. The claim of direct racial discrimination therefore failed.
2. Indirect discrimination. The admissions policy was a provision, criterion or practice which placed persons of some racial or ethnic origins at a disadvantage, because those groups were less likely to satisfy the Orthodox Jewish criterion. The policy pursued a legitimate aim: maintaining a Jewish school with an Orthodox Jewish ethos and educating children recognised as Jewish under the relevant religious principles. Giving preference by religious membership or status, rather than practice, was legitimate in principle. The policy was a proportionate means of achieving that aim, particularly because replacing it with criteria based on observance or commitment would produce a different school ethos. The indirect discrimination claim failed.
3. Section 71. Section 71 imposed an enforceable duty to have due regard to both statutory requirements: eliminating unlawful racial discrimination and promoting equality of opportunity and good race relations. The duty was not merely a target duty and was engaged because indirect racial discrimination was capable of arising. JFS’s general Race Equality Policy did not demonstrate proper consideration of the statutory requirements. A declaration was therefore appropriate, but fuller compliance would not have altered the admissions policy or its application to the child.
4. Religious character and delegation. The school’s instrument of government, rather than the wording of its designation alone, governed its religious ethos. JFS was entitled to use the Office of the Chief Rabbi to determine whether a religious-status criterion had been satisfied. It had determined the admissions criteria itself and had not unlawfully delegated that function or fettered its discretion.
5. Admissions Code and Appeal Panel. The remaining challenges to the Admissions Code, the conversion-course provision, the Appeal Panel’s jurisdiction and procedural fairness failed. Consistently with R (Hounslow London Borough Council) v School Admissions Appeal Panel for Hounslow London Borough Council, the Appeal Panel was not required to undertake a general review of the legality of the admissions arrangements. The claimant nevertheless received a full and fair hearing and suffered no material prejudice.
6. Disposition. Both judicial review claims were dismissed except that the claimant was entitled to a declaration that JFS had failed to comply fully with section 71 of the Race Relations Act 1976.

Not stated in the judgment.