Orthodox Judaism and school admissions policy: Hasmonean High School

Introduction

Hasmonean High School is an academy school for children aged 11 to 18 operating on two separate sites: one for boys and one for girls. An objection was raised about the school’s criteria for determining whether or not an applicant was an Orthodox Jew: see Hasmonean High School [2015] Office of the Schools Adjudicator ADA2990.

The facts

Like most good faith-based schools, Hasmonean High is normally oversubscribed. The current oversubscription criteria give precedence first of all to Orthodox Jewish children, defined in the following way:

“A A child must observe and practise Orthodox Jewish traditions and practices as set out in B hereunder. In the event of any dispute as to whether a child meets these criteria, the authority of the Rabbis of the Jewish Secondary Schools Movement is final.

B A child must also have a parent or parents who:

1. Have a genuine desire for Orthodox Jewish schooling
and
2. Observe the Sabbath and Holy Days, adhere to the Dietary Laws and maintain active participation in an Orthodox synagogue, such synagogue to be one recognised as such by the Rabbis of the Jewish Secondary Schools Movement” [10].

The Rabbi Reference Form which must accompany an application says that to meet the faith practice requirement a family must have met three out of the following five tests during the previous year.

“1. eat away from home only in establishments certified as kosher by a recognised kashrut authority;

2. observe the laws of family purity;

3. commit time to Torah study as required by Jewish law;

4.commit time to communal prayer where possible and/or individual prayer in accordance with Jewish Law; and

5.look for Rabbinic guidance with regards to Halachic queries” [12].

The determination

The objector took particular exception to the second of the five requirements on the grounds that it related to the sexual aspects of marriage, questioning whether it was “reasonable, procedurally fair or objective to ask for or seek to verify this information” and suggesting that it might not comply with paragraphs 1.8, 14 and 1.37 of the School Admissions Code [13]. The school’s response was that it was “an established and appropriate test of religious observance which would be entirely clear to an observant Jew and is in no way embarrassing or intrusive” [14].

The adjudicator upheld that part of the objection [21]. Though the school and its religious authority might think that to be asked such a question would not embarrass an observant orthodox Jew, some parents applying for places at the school might nevertheless find it embarrassing or intrusive; however, because it was necessary to observe only three out of the five criteria it was not therefore necessary for a family to declare observance of that particular criterion in order to demonstrate the practice of its faith – and that was fair to those who might not wish to divulge such details of their private life [19]. Nevertheless, the adjudicator concluded that it would not be possible to assess objectively whether or not a family did, in fact, observe the laws of family purity; and since paragraph 14 of the Code required the practices used to allocate places to be objective, requirement 2 failed that test [21].

There was also a potential unfairness inasmuch as a family might meet the faith practice requirements but that family’s rabbi did not know that it did so and would not, therefore, be able to sign the obligatory Rabbi Reference Form [32]. The adjudicator also concluded that, because the test itself was not objective, it was possible for families who did not meet the religious practice requirement to be declared compliant, while those who did meet it might not being recognised as doing so: that, too, was a breach of the requirements of paragraph 14 of the Code [40].

The objection to the admission arrangements determined by the governing body for Hasmonean High School, Barnet was therefore upheld [45].

Comment

Many who have got this far may have been reminded of the judgment in R (E) v Governing Body of JFS & Anor [2009] UKSC 1, in which the Supreme Court held by a majority that it was unlawful for a Jewish state school to refuse to admit the son of a Jewish father who was not recognised as Jewish by the Office of the Chief Rabbi because it did not recognise the validity of his mother’s conversion. The majority held that the refusal discriminated against the child on grounds of race (rather than on grounds of religion) either directly or indirectly without justification, contrary to the provisions of the Race Relations Act 1976.

I discussed JFS at the time in ‘Who is a Jew? Jewish Faith Schools and the Race Relations Act 1976’ (2010) 164 Law & Justice 75-83. That case began life as a school adjudication [1] and went all the way to the UKSC. The consequence of the Supreme Court’s judgment was that instead of Jewish schools being able to define Jewishness in terms of halacha, it became necessary for them to introduce tests of religious practice.

According to my understanding of the situation, the officials at the Office of the Chief Rabbi were very concerned at that prospect because, as one of them pointed out at a meeting at which I was present, Judaism was not primarily about belief or attending synagogue, but about the fact of being halachically Jewish and keeping the commandments. It was perfectly possible to be a devout and observant Jew, keeping kosher and observing the commandments, without ever attending Sabbath services (which for Jews in isolated communities may be impossible in any case if there are not sufficient men to assemble a minyan locally in order to hold a service – a problem exacerbated by the fact that Orthodox Jews are forbidden to drive on the Sabbath). The result of JFS, in his view, was that Orthodox Jewish schools would have to start constructing admissions criteria that were, in effect, artificial.

I remain convinced that the judgment of the majority in JFS was strictly correct in terms of the Race Relations Act and the subsequent case-law – even though one of the two dissenters, the late Lord Rodger of Earlsferry, was no doubt absolutely right when he said that the result could never have been what Parliament had intended when it passed the Act in the first place. Equally, however, its effect seems to have been precisely as predicted: that Orthodox Jewish schools have been forced to construct the kind of admissions criteria that, mutatis mutandis, would not look out of place for a Roman Catholic school.

But Judaism is not remotely like Roman Catholicism – and one result of that artificiality is the adjudication in Hasmonean High School.

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[1] Admission Arrangements of JFS, Brent [2007] Determination by the Schools Adjudicator under the School Standards and Framework Act 1998 ADA 001187: alas, no longer available on the Web – yet another minor victim of the Government’s misplaced zeal for a single, streamlined, corporate website.

Cite this article as: Frank Cranmer, "Orthodox Judaism and school admissions policy: Hasmonean High School" in Law & Religion UK, 19 October 2015, https://lawandreligionuk.com/2015/10/19/orthodox-judaism-and-school-admissions-policy-hasmonean-high-school/

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