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Adjudicator publishes a decision on an objection to the admission arrangements of JFS, Kenton, Middlesex

OFFICE OF THE SCHOOLS ADJUDICATOR News Release (PR153.07) issued by The Government News Network on 27 November 2007

The Office of the Schools Adjudicator has published a decision on an objection by Brent LA and two parents about the determined admission arrangements of JFS for the academic year 2008/2009. The central objection was that the school, which gives priority for places to children who are recognised as being Jewish by the Office of the Chief Rabbi, does so in contravention of the Race Relations Act 1976. Dr Philip Hunter, the adjudicator considering the case, partially upheld the objections and concluded that criteria 1.2 and 1.3 of the undersubscription criteria in Appendix A to the school's admission arrangements shall be deleted. Attached is a key passage of the determination.

NOTES TO EDITORS

Schools adjudicators are independent of the Government. They decide on school organisation issues, disputes on land transfer and assets and admission arrangements which cannot be resolved locally. They were appointed under the School Standards and Framework Act 1998. Their role is to look afresh at all cases referred to them, considering each case on its merits and taking account of the reasons for disagreement at local level in the light of the legislation and the guidance in the School Admissions Code.

Copies of the determination reached by the adjudicator can be obtained from the Office of the Schools Adjudicator. It can also be found on the Schools Adjudicator Website - http://www.schoolsadjudicator.gov.uk. Individual adjudicators are not in a position to comment on their decisions but, if clarification of those decisions is needed, enquiries can be addressed to: The Office of the Schools Adjudicator, Mowden Hall, Staindrop Road, Darlington DL3 9BG

Public Enquiries Tel: 0870 0012468

Key passage of JFS determination
By way of preliminary observation, the question of whether the school's admissions policy has been drawn up in a way that contravenes the Race Relations Act 1976 is a very difficult one. Ultimately, only the courts could make a definitive judgement on this issue and any decision I reach will, of course, be subject to any final ruling by a court, should either party seek such a ruling. I should also say that such questions, concerning, as they do, the application of the Race Relations Act 1976 in an area that itself may also involve questions of religious law, are not ones that fall within the natural expertise or competence of a schools adjudicator. However, I have a duty to determine the objection that has been referred to me on this basis and so will do so to the best of my abilities. I am not in a position to await a court ruling on this point, nor to await advice that the Commission for Equality and Human Rights ("CEHR") may give because the school has to make its arrangements for next year. The school will have to make that decision in the next few months. I had understood that a reference had been made to the Commission for Racial Equality who, in turn had referred it to their successor body the CEHR. However, it may be that there is doubt as to whether or not the CEHR will investigate the matter. In any event, as I have indicated, I consider that I should determine this matter to the best of my abilities rather than wait for any opinion that the CEHR may give.

Dealing with paragraph 1.1 of the policy first, it appears to me that, on the question of direct discrimination, the issue is whether any less favourable treatment is based on "racial grounds". I understand that the law recognises that persons who are Jewish may form a racial group for the purposes of the Race Relations Act 1976; equally, it seems to me, it may be the case that any less favourable treatment may be based on religious not racial grounds. I consider that paragraph 1.1 of the admissions policy is, in fact, a policy whereby treatment is based on religious grounds. It appears to me that the policy reflects an essentially religious view, i.e. the view that those who satisfy the requirements of Orthodox Judaic law for being Jewish should be the ones given priority for admission to the school. For those reasons, I have concluded that paragraph 1.1 of the policy does not contravene the prohibition on direct discrimination on racial grounds.

As for indirect discrimination, the argument seems to me to be that the practice or policy of the school places non-Jews at a disadvantage when compared with persons who are ethnically Jewish. The argument is that the admissions arrangements put non-Jews at a disadvantage as, whilst ethnically Jewish persons are more likely to be capable of satisfying the test of being Jewish according to orthodox Jewish law (i.e. to be Jewish through the maternal line), persons who are not ethnically Jewish do not have that advantage. That practice is said not to be a proportionate means of pursuing a legitimate aim as no attempt is made to assess the religious affiliation or commitment of such families. I accept that the policy in effect involves the application of a practice, provision or criterion which puts non-ethnically Jewish persons at a disadvantage. However, the policy in my opinion does seek to pursue a legitimate aim, namely the preservation of an ethos at the school which reflects Orthodox Jewish principles. That would also accord with the Instrument of Government of the school. Those principles of Jewish law recognise that Jewishness passes through the maternal line. That appears to me to be a religious matter based on the understanding and application of religious laws and principles. Given that the aim of the policy is to ensure that those who are Jewish by reference to that Jewish law are admitted to the school, it is proportionate to adopt a policy which, even if it puts ethnically non-Jewish persons at a disadvantage, seeks to ensure that those children who are given priority for admission are Jewish in accordance with Orthodox Jewish law. I regard the justification for the policy as compelling. The legitimate aim being pursued is seeking to ensure that those children who are Jewish (applying Orthodox Jewish principles) are admitted to the school. Alternatives based on factors such as adherence or commitment to Orthodox Judaism, rather than being Jewish, are not, in my judgement, alternative means of achieving the aim of admitting Orthodox Jewish children to the school. Rather, they would relate to a different aim and could result in preference being given to children who were not Jewish according to Orthodox Jewish principles. I do not, therefore, uphold the objection to paragraph 1.1 of the admissions policy.

It appears to me, on careful reflection, that the position in relation to criterion 1.2 and 1.3 of the undersubscription criteria in appendix A of the policy may be different. I accept that there is no direct discrimination as the criteria are still based on religious grounds not racial grounds (albeit the religion of the father or the grandparents). However, those criteria may conflict with the prohibition on indirect racial discrimination. The point to bear in mind here is that the criteria deal with the way in which two children - neither of whom are Jewish in the religious sense - would be dealt with in terms of admission. One child (the child with a Jewish father or grandparent in the religious sense) is given preference over the child who has no such parent or grandparent.

That does appear to me to put persons who are not ethnically Jewish at a disadvantage as compared with those who are. Those who are not ethnically Jewish are not likely to have a father or grandparent who is Jewish (in the religious sense). The aim which is said to underlie the criteria is in principle a legitimate one - to ensure that those admitted to the school are sympathetic to its Jewish roots or "the possibility that the child will be receptive and responsive" to an approach based on Orthodox Judaism. Ultimately, however, I accept the view that the criteria are not proportionate. In particular, I bear in mind that satisfaction of the criteria will not necessarily achieve the stated aim. By way of example, the Jewish grandparent (or father) relied upon may be dead, or no longer observant or play no part in the child's upbringing. There is no indication of how the Jewish link in these cases could achieve the stated aim. I am also aware that Paragraph 2.13 l) of the Code allows faith schools to take account of membership of or participation in religious activities so it would be possible for the school to find a means of identifying children most likely to respond to the Orthodox Jewish ethos of the school without making an assumption that any child who has a Jewish parent or grandparent will be more likely to be receptive to or sympathetic towards the Orthodox Jewish ethos of the school. I have decided therefore to require the deletion of criteria 1.2 and 1.3 of the undersubscription criteria in Appendix A to the school's admission policy.
The position in relation to point 1.1. of the admissions policy is different from the position in relation to criteria 1.2 and 1.3 of the undersubscription criteria. In relation to point 1.1, the arrangements provide for those who are Jewish, according to Jewish law, to be admitted to the school and I regard that as a proportionate means of achieving a legitimate objective. The criteria in paragraph 1.2 and 1.3 are dealing with children who are not Jewish according to Jewish law. The criteria gives preference to non-Jewish children with a Jewish parent or grandparent. For the reasons that I have explained, those arrangements, whilst seeking to pursue a legitimate aim (ensuring that children who are admitted are responsive and receptive to Orthodox Judaism), are not proportionate.

For completeness, I should note that I have considered the significance, if any, of the fact that, under the Designation of Schools Having a Religious Character Order 1999, the religious character of the school is Jewish not Orthodox Jewish. This, I understand, is said by some of the objecting parents to demonstrate that the school is not entitled to give priority to children recognised as Jewish by the OCR. In my opinion, the phrase "Jewish" in the 1999 Order was not used with precision and was not used in a way that was intended to delimit the admissions policy of the school. In particular, it was not used in a way intended to make an admissions policy favouring the admission of Orthodox Jews to the school unlawful because it contravened the Race Relations Act 1976. In my opinion, a surer guide to the character of the school, from the view point of admissions policy, is its Instrument of Government which provides that the school "will preserve and develop its religious character in accordance with the principles of Orthodox Judaism, under the guidance of the Chief Rabbi of United Hebrew Congregations".

Issued on behalf of the Office of the Schools Adjudicator by GNN North East.

Mowden Hall
Staindrop Road
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