This is a great judgement. We like it. Sure, Faith Schools may be dodgy in general, but if they do exist they have to play within the rules.
First some background.
First and foremost, this is about hubris. Hubris on the part of the Chief Rabbi and the Bet Din, who thought they could exert total control over JFS admissions and still receive the millions of pounds in state funding that the school required. If they had been prepared to admit the relatively small number of children that they didn’t consider halachically Jewish: children of progressively converted mothers, patrilineal Jews, and (hilariously) children of parents whose conversion was orthodox but ‘not orthodox enough’; then this case would not have been brought and this rather radical ruling would not have occurred.
Secondly, it’s about the possible end of the Jewish school boom. While JFS has a history that stretches back to 1817, the major increase in Jewish schooling that has lead to more than half or Jewish children being educated in them, occurred in the 1980s and 1990s. This has been the United Synagogue’s major response to assimilation, and intermarriage, and the fear that as a result, orthodox hegemony might well dissipate. As a result, the vast majority of Jewish schools are orthodox, under the authority of the Chief Rabbinate, although there are some very successful non-orthodox Primary Schools, such as Akiva and Clore Shalom. In general, the United Synagogue has had some success in using the school model as a way to hold on to their power. This period is now drawing to a close with the advent of JCOSS, the forthcoming cross-communal school, which will admit those Jews turned away by JFS, and by the new ruling, which threatens to undermine the admissions policy of Jewish schools across the spectrum.
So what of the actual ruling? Well, as you’d expect, its quite confusing, and contains lots of legalese. It seems to boil down to this, there’s a race relations act, religious schools are not exempt from it (they can discriminate on religious grounds but not racial ones) and JFS admission’s policy, by which a child can join the school if it has a Jewish mother but knows no Hebrew, nothing about Judaism, and has never stepped inside a synagogue, was judged to be racial discrimination. The test case is that of the child of a reform convert. Whilst the Chief Rabbi and the Beth Din consider non-orthodox Judaism illegitimate, a child born of a Jewish mother who practices Reform Judaism is admitted, while the child of a reform converted is not. This is a test of ethnicity. Tony Lerman puts it well:
The matrilineal descent criterion for admission means that as long as the child’s mother is Jewish, the child can qualify for a place. It’s of no consequence whether she or he has any knowledge of Judaism or is observant, as long as a few basic requirements are satisfied. The whole family could be virtually ignorant about Jewish belief and practice and it would make no difference. But, for example, where a Jewish man and a non-Jewish woman want to send their child to JFS, and the child has been educated in religious knowledge and practice at the Liberal synagogue of which its parents are members and where they regularly attend services, the child would be refused a place. A practising, knowledgeable Jewish child is turned away. A Jew whose only Jewish connection is by birth is given a place.
Predictably there was uproar. The Jewish establishment went mad. Was it for this that we so assiduously cultivated our contacts within the British elite, and built a network of superior Jewish legal minds? Responses were rather hysterical. From the Board of Deputies:
The effect of this judgement is that Jewish schools will not be able to give preference to applicants on the basis of their faith (as permitted by law) applying the criteria that have always been used by Jewish religious authorities.
This is wrong – they will be able to discriminate on their ‘faith’, just not on their ethnicity, the Board simply cannot see that these might be different.
From the Chief Rabbi
“The principles underlying membership of the Jewish faith… have nothing to do with race and everything to do with religion. Ethnicity is irrelevant to Jewish identity.”
Yeah right Johnny Boy. Tell that to Mrs Cohen when she has to bring her mother’s birth certificate or ketubah (wedding certificate) before she can join the shul. Tell that to the hordes of Jewish parents who are delighted for their child to marry someone with zero Jewish practice as long as they are ‘one of the tribe’
The court got it right. If there’s going to be a race relation act, which has been beneficial to Jews and other minorities, it applies across the board, and a school cannot contravene it in its entry policy. Incidentally, in contradiction to some of the hyperbole, the Race Relations Act does not affect synagogues, as they are private institutions rather than public ones. Don’t worry yidden – your shuls are safe.
Now there’s a fair point to be made against the judgement. Its that notions of religion and ethnicity are massively complicated and contested, and should be dealt with in the academy rather than the courtroom. What’s more, whether Judaism is a race/nation or a religion is a massive internal Jewish debate, one that can’t just be ruled upon by the state. But the key point is that if you play the game, you play by its rules. If you want to take public money, if you want the benefits that come from being a state school, you have to work within the legal framework, and its prohibitions on discrimination.
The reason this ruling is so fantastic is it takes a hammer blow not only to the orthodox hegemony in Britain, but to the prevailing Jewish ethnocentrism and tribalism that paralyses our community. If the ruling stands (and this is in question, as there will be an appeal to the House of Lords) it will mean that Judaism, at least on the school entry level, has to be measured by practices, learning and ideas, rather than who your mother happens to be. It will mean that Jewish parents cannot ensure that their children are brought up around only ‘people like them’, but have to take their place in multicultural British society. And it will force the Jewish establishment to deal with the realities of Jewish identity – which is partial and complex – rather than casting out those who do not fit their template of Jewishness and then pretending that everything is ok.
So until any appeal is successful (which could take some time, unless the Jewish establishment is able to pull a few strings) there will have to be a change of policy for Jewish schools. They have 2 key options, a bad one and a good one. The bad option would be to copy the church school model. Children have to attend synagogue services and other events, keep Shabbat/kashrut, and receive a letter from their rabbi to certify that they are doing so. This is in keeping with the ruling but would incur all the problems of church schools; parent ‘faking’ it by going to shul for the 2 years before the admissions test and never again. Furthermore, this would realign Judaism with a protestant model, and while we need to get over our obsession with ethnicity, becoming a creedal religion is not necessarily the way to go either.
The better model is to open the gates. Let anyone who wants a Jewish education come. Why should we turn them away? If parents want their child to study in Jewish environment, learn Hebrew and Jewish texts, how stupid is it to say that they can’t? Are there so many of us that we can afford to be picky? Such a policy would be the truly utopian one, defining Judaism by learning and life practices (not an ethnicity, nor a creed) and allowing anyone who wants sees value in its paths to join without restriction. This would be a policy that would fit within the law, and promote a renewed and vital Judaism for the 21st century,
Don’t hold your breath.
ps see this debate between Rabbis Danny Rich and Yitzhak Schochet Channel 4 News debtae