Decisions Only a Lawyer Could Love – Part I

Two recent court cases reminded me how differently from real people lawyers are taught to view the world. Both decisions support Mr. Bumble’s pronouncement that if the law is as described, “the law is a ass,” as both decisions produce bad results. But neither decision, I submit, is wrong.

The first case involves JFS, a Jewish private school in London. Under British law, religious schools receive state support, and they may give admissions preferences consistent with their religious orientation (as determined by a religious authority). They must not, however, discriminate on the basis of ethnicity. This puts Jewish schools in an odd position, because one of the tenets of orthodox Jewish belief is that a child is Jewish if, and only if, his or her mother is Jewish, by birth or orthodox conversion.

JFS gives an admission preference to “Jews” of all level of observance. The school’s admission policy is intended not only to enable the observant to remain so but to enable the uninitiated to become observant. This policy may be perfectly laudable, but it is not consistent with the purpose of the English law, which is to allow parents to send their kids to schools that teach the parents’ religion. One can easily imagine non-observant Jewish parents sending their child to a Jewish school not to get a religious indoctrination but in spite of it. Such children would be given preference at JFS, contrary to the purpose of the state support. The school’s admission policy is thus inconsistent with the law, and, according the the English Court of Appeal, a mid-level appellate court, its implementation violates that law.

The JFS case involved a boy whose mother was converted by a non-orthodox method and was denied admission by the school on this ground under the schools’ policy of giving preference to “Jews” as defined by the Orthodox rules. The court held that a school may not use the matrilineal test because that is an ethnicity test, not a religious one.

The case has raised a big stink for a couple of reasons. First, if one doesn’t look too closely, the court appears to be deciding who is a “Jew.” But it is not. The court doesn’t care who is a Jew. The court is saying that a school for “Jews” is a tribal, discriminatory place, whereas a school for the children of people who practice orthodox Judaism is not.

Second, inside the Jewish beltway as it were, the ongoing battle of orthodox and non-orthodox rabbis over the nature of conversion is being played out. If the boy’s mother’s non-orthodox conversion had been accepted by the school, the whole thing would never have come up. Of course, the legality or not of the admissions policy would remain the same, but there’d be no plaintiff to make a fuss. The political furor over the case is stoked by this internal battle, but it seems to me wholly irrelevant to the legal case.

To the lay press, the case seems to be about the state meddling in the internal affairs of a religious denomination, deciding to whom a Jewish school may give preferences. But to a lawyer, the case is about whether there can be a “Jewish” school at all, as opposed to a “Judaist” one, a straightforward question of statutory law. The matter is clouded by what many see as a bad result – an orthodox Jewish school not being able to restrict admission to people who can be orthodox Jews – but that result is bad only if you think such a school is worth having, and if you think the state should pay to subsidize it. These are interesting policy questions. But they have no bearing at all on the correctness of the court’s decision.