26/11/2025
Written by: Mark Greaves
Background
E, the father of a 13 year old boy referred to as M, wished to send his son to JFS (the Jewish free School, as it used to be known), an outstanding school which was oversubscribed. Under its oversubscription policy, the school gave priority to children who were recognised as Jewish according to the Office of the Chief Rabbi (“the OCR”), such recognition being based on matrilineal descent or a conversion recognised by the OCR. M was refused admission because he was not recognised as Jewish by the OCR: his mother was not born of a Jewish mother and, although she had converted to Judaism before M’s birth, she had done so under the auspices of a non-Orthodox Synagogue which meant that her conversion was not recognised by the OCR.
E brought a claim for judicial review, claiming that since the definition of who was Jewish was a question of ethnicity, the refusal to admit his son because his mother was not Jewish according to the OCR was unlawful in that it constituted either direct discrimination on racial grounds, or indirect discrimination which could not be objectively justified. The Court of Appeal found that JFS’s admissions policy was directly discriminatory or, alternatively, if the discrimination was indirect, there was no legitimate aim. JFS appealed to the Supreme Court who convened a nine judge court, reflecting the importance of the issues raised by the appeal.
Decision
The Supreme Court held, by a majority of five to four, that JFS’s admissions policy constituted direct discrimination. The Court held that the test of matrilineal descent applied by the school was a test of ethnic origin and thus amounted to unlawful direct discrimination. The Court noted that there was a theological motive for adopting the admissions policy but this was immaterial since, unless subject to a special exception, even direct discrimination for a well-intentioned motive is unlawful.
The Court emphasised that direct and indirect discrimination are mutually exclusive and thus it was strictly unnecessary to consider the alternative claim of indirect discrimination. However, the majority nevertheless found obiter that, if the admissions policy had been indirectly discriminatory, it would not have been justified. Although JFS, as a faith school, had a legitimate aim in pursuing a policy which promoted the religious principles that underpinned its faith, JFS had provided no evidence that they had considered whether less discriminatory means could be adopted which would not undermine the religious ethos of the school (such as admitting a limited number of children committed to the Jewish religion who were recognised as Jewish by any of the branches of Judaism). As a result, the admissions policy would not have been regarded as a proportionate means of achieving a legitimate aim, had the policy been found to be indirectly discriminatory.
Comment
The JFS case continues to be cited as the leading authority confirming that the motive for discrimination is irrelevant (see, for example, HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School (Secretary of State for Education and others intervening) [2017] EWCA Civ 1426 at [81]). JFS also was and remains hugely important practically for the approach adopted by faith schools as to their admissions policies. However, JFS serves also as a reminder of the importance of upholding the rule of law, regardless of context.
Lord Hope noted in JFS that the question of “who is a Jewish person”, and the propriety of the OCR’s criteria as to this, were disputed matters within the Jewish community and that determining the discrimination issue that arose in the case was a matter which might appear “distasteful or offensive” to some [160]. Similarly, Lady Hale noted that there might be some who felt that Jewish schools should be permitted to “adopt criteria which they believe to be required by religious law even if these are ethnically based” [69]. Nevertheless, both emphasised the importance of facing up to the task of applying the settled principles of discrimination law to the issue at hand and not allowing the sensitivities of the context to distort those principles.
Matrix members
Helen Mountfield KC appeared for E, the father of M.
Dan Squires KC appeared for the Secretary of State for Children, Schools and Families (an Intervener).
David Wolfe KC appeared for the British Humanist Association (an Intervener).
Thomas Linden, Sam Grodzinski, Aileen McColgan and Adam Sandell (all of whom were members of Matrix at the time) also appeared before the Supreme Court.