A decision has been handed down in the British Court of Appeal that sets a monumental precedent for those wishing to place their children in a faith-based school. Reading this sorry saga, Americans will be grateful for separation of church and state and for the independence afforded parochial schools.
The British school crisis started this way: one of two couples whose children were rejected by the Jewish Free School in 2007 went straight to the High Court because in one case the rejection was based on a view that the mother had “stopped living an Orthodox lifestyle.” Mr. Justice Munby ruled that the school’s right to determine admission criteria was as valid as that of Christian or Islamic schools and their being censured could sabotage “the admission arrangements in a very large number of faith schools of many different faiths and denominations.” The decision was appealed.
Putting aside the intricacies of Jewish religious law, this story is an intriguing one because this summer Lord Justices Sedley and Rimer and Lady Justice Smith of the Court of Appeal have handed down a decision saying that the criteria for admitting a child to the Jewish school are in breach of the Race Relations Act. The chief rabbi, Sir Jonathan Sacks, has interpreted this as a condemnation of Jewish ecclesiastical regulations as “racist.” He said, “Jews have been in Britain for 353 years and the JFS in existence since 1732. In all those years the same principle has applied. … We extend Jewish education to Jews. … It applies to all Jewish schools, Orthodox and non-Orthodox alike. … Now an English court has declared this rule racist and since this is an essential element of Jewish law, it is in effect declaring Judaism racist.”
The Court of Appeal is saying that religious criteria violate the same laws as those laid down against racial discrimination. In other words, if you want your kid to go to Catholic school or some other faith establishment, effectively the very concept of a single-faith environment smacks of racism.
The uproar this story has caused in Britain has been something to behold and has even made its way into the columns of the mainstream newspapers, as anguished commentators write about the crisis. JFS is an outstanding state-funded school that has enjoyed a national rating in the top one percent in the scholastic excellence tables, but the judge in question is saying that taxpayers should not be footing the bill for a “racist” entry system. This reverberates not just with Jewish establishments but with Muslim and Christian schools. So — is it reasonable for a Jewish or Muslim family to expect their children, if they so wish, to be able to observe halal and kashrut in early childhood? Once they get to Oxford or Harvard they will be exposed to bacon sandwiches and alcohol, but in their formative years many feel they have a right to reassurance that their religious beliefs will be respected in a supervised school environment.
Equally so, Christian children are entitled to an education structured in Catholic, Protestant, or other denominational tenets and need not be constrained by having to worry about others’ religious beliefs. In other words, if Catholic or Protestant children want to bring ham sandwiches to school or sing about Jesus, they have a right to their observances with their own flock, rather than being forced by a judge to “tackle racism” and mingle with non-Christians who, in turn, could be miserable too.
The ruling will mean that it is open season on admissions. Chief Rabbi Sacks should never have allowed JFS to subject the couples in question to such an ordeal and Jewish communal conflict should never have reached the mainstream press. Journalist Andrew Sanger points out that the far-right British National Party supports the JFS on this issue because the decision means no group or institution will be safe from liberal interference in defining a unique ethnic or national group. A comment from “Lord Reith” on Sanger’s blog says, “The state should not be paying for faith schools. Why should people pay for schools they can’t send their children to? If people want to indoctrinate their kids in faith schools and dogma, let them pay for it themselves.”
This brings me to the story of one of the Founding Fathers. Alexander Hamilton’s mother, living amongst the eighteenth-century Sephardi community of the Caribbean island of Nevis, had left her Jewish husband and given birth after a liaison with a new, non-Jewish partner. Because he was regarded as “born out of wedlock,” Alexander could not gain admission to the Christian schools on the island. The one Jewish school in existence decided to let him enroll. He enjoyed a fine education at the little synagogue on Jew’s Walk and learned Hebrew. Later in life he rejoiced in being able to read a Hebrew Bible and write in the language. He often said he was indebted for life to the Jewish community for taking the view that education overtook any other aspiration. Likewise did anything bad happen to the cheder (Hebrew school) he attended? Was its stature diminished because he was the offspring of a gentile mother? No. Hamilton’s biographer Dorothie Bobbé wrote: “Denied schooling, [his mother] sent him to the Jewish school. … The Jews were respectable, and respected, in the islands. … His teacher liked to stand him on a table and make him recite the Decalogue in Hebrew.”
When a practicing lawyer, he said during a case that “the progress of the Jews … from their earliest history to the present time has been and is entirely out of the ordinary course of human affairs. Is it not then a fair conclusion that the cause also is an extraordinary one — in other words that it is the effect of some great providential plan?”
What an irony that in 2009, 250 years after one of the most revered of the Founding Fathers enjoyed a full Jewish education despite his un-Jewish roots, a British school could impose on families restrictions that could have been resolved within its own community and not become a national cause célèbre. As I write this, headlines abound: “JFS Ruling Leaves Schools in Chaos,” “The Court Judgment That Has Declared Judaism Racist,” and “This Is a Battle for Justice and Unity.” Rabbi Jonathan Wittenberg passionately decries the “profoundly unjust” behavior of JFS.
Having said earlier that children of faith tend to be happier amongst their own, I would venture that JFS should have adapted to the modern world and modified its rules to accommodate the children of converts. Life would have gone on. Some historians posit that Alexander Hamilton’s mother was indeed Jewish and so was he. Whether he was or not, his school bent the rules and the Hamilton experience produced a man who treasured his core religious education, venerated Judaism for the rest of his life, and became a great leader.
For those who wish to keep their offspring in a religious environment, this case has resulted in a judgment that effectively declares the centuries-old tradition of faith schools a violation of race laws. Some on the right are saying the British court judgment is the first step to abolishing faith schools in a passionately secular, Dawkins-esque nation. On the left it is being mooted that this is a sinister plot to close down Islamic madrassas across Britain and force a mass exodus of Muslims from our shores, just as the campaign to ban ritual slaughter has been perceived as an attempt to make Britain Muslim-free and Jew-free.
Although separation of church and state will preclude even a super-liberal U.S. Supreme Court from following suit, and secularism in France, for example, will also make such crises unlikely there, those who favor faith schools should take note of the enormous influence the courts can wield and the seismic shocks they can inflict.