Faith schools across Britain are holding their breath and waiting to see if they will need to change their admissions procedures after Europe's largest Jewish school was last week given the right to appeal a court decision saying its entry policy was racist.
In June, the British High Court of Appeals exposed a rift within Britain's Jewish community when it ruled that the admissions policy run by JFS School in North London was in breach of the Race Relations Act. The school's admissions policy, which insists that a pupil's mother must be Jewish, whether by birth or conversion, came under scrutiny in 2007 after the school refused to admit a 12-year-old boy on the grounds that his mother had converted to Judaism from Catholicism through the progressive Judaism movement, which is not recognized by the orthodox United Synagogue, Britain's largest Jewish authority.
JFS (originally called the Jewish Free School) was at first found to be exempt from race-relations laws. But when the case was taken to appeal, judges ruled that the school was violating the law created in 1976 to end racial discrimination in the U.K. The decision rocked Britain's faith schools and sparked a debate over the basis of religious identity as Britain's Jewish community found itself asking, What or who defines someone as a Jew?
To try to answer that question, JFS, one of the most oversubscribed and academically successful state schools in the capital, was forced to consider giving prospective students religious tests to determine the extent of their observance and Jewish identity. Now that JFS has been granted an appeal, it's up to Britain's newly formed Supreme Court to tackle the issue. "We are pleased with the House of Lords' decision to grant JFS leave to appeal and we will be seeking permission to intervene," Simon Hochhauser, president of the United Synagogue, said in a statement. "The responsibility for educating our children is one of Judaism's most fundamental principles."
To help the court come to a decision, the Board of Deputies of British Jews, a democratically elected representative body of Britain's Jewish community, has stepped in to act as an official adviser. According to spokesman Mark Frazer, the board's aim will be to make sure the court's ruling is right for even the most orthodox of Britain's Jews. "The board must cater for the highest watermark of religious observance in order to safeguard the rights of the entire community," he says. "The orthodox definition of who is Jewish, taking into account someone's parentage or lineage, is not a racist one, it is a religious one."
However, the board's involvement in the case has divided the Jewish community, with some questioning its neutrality. "This is the great con," says Geoffrey Alderman, an expert on Anglo-Jewry at the University of Buckingham. Alderman points out that the board is bound by its constitution to defer to its most senior ecclesiastical authority, Sir Jonathan Sacks, on matters of religion and Sacks, Chief Rabbi of the U.K.'s mainstream synagogues, is head of the United Synagogue, which has already spent $225,000 helping JFS defend its case.
If the Supreme Court rules in JFS's favor, it will save the school from having to devise religious-observance tests that, according to Susan Jacobs, an expert in Jewish ethnicity at Manchester Metropolitan University, could have the unexpected result of excluding nonpracticing Jews. But if the appeal fails, it could open the way for pupils refused entry to JFS and any other religious school to sue the school for racial discrimination.
Whatever the result, the Supreme Court's decision is bound to bring up more questions than answers and provoke continued debate on the issue of Jewish identity. As Kushner says, "This case just shows the impossibility of defining who a Jew is."