On June 11, London’s Jewish Chronicle ran the provocative headline: “Jewish girl’s King David place goes to non-Jew.”  This breaking news is the latest incident in the Anglo-Jewish community’s struggle to establish a means of identifying their own that comports with British law.  Since the British High Court recently declared the Orthodox Jewish matrilineal lineage test in violation of England’s racial discrimination laws, Anglo-Jews have had difficulty determining who counts as Jewish for admissions to Orthodox Jewish schools.  
 
In England, religious schools are permitted to give admissions preference to applicants who share the school’s religious affiliation.  Usually this preference is a matter of mutual agreement between the students and the schools.  Until recently, the Office of the Chief Rabbi (OCR), the designated authority over Orthodox Judaism in England, instructed Orthodox Jewish schools that a child was considered Jewish if he or she was born to a Jewish mother, regardless of his or her level of religious observance.  Failing this, a child could also apply to undergo a conversion that would be recognized by the OCR.  However, in December of 2009 the OCR’s matrilineal test was declared illegal in R v The Governing Body of JFS [UKSC 15].
 
In R. v The Governing Body of JFS, twelve-year-old “M” applied for admission to the Jews’ Free School (JFS) in London.  The well-regarded Orthodox Jewish school had more applicants than seats, and thus JFS employed a policy of giving preference to those applicants who were “…recognized as being Jewish by the Office of the Chief Rabbi (OCR)” (§24, UKSC 15).  M was denied entry to JFS because he did not satisfy the OCR’s matrilineal test.  While M’s father was Jewish by birth, M’s mother had converted to Judaism under the supervision of the Masorti Jewish rabbinate.  England’s OCR does not recognize Masorti conversions.  Thus, according to the OCR, M was ‘not Jewish’ because his mother was not Jewish by OCR standards, and M himself did not wish to undergo an Orthodox conversion.
 
M’s father sued JFS, arguing that in utilizing the matrilineal test JFS’s admissions policy violated the United Kingdom’s Race Relations Act of 1976.  The British Supreme Court explained that while religious discrimination is permissible under British law for religious schools, racial discrimination is not under the Race Relations Act.  The Court ruled that when JFS utilized the matrilineal test the school was engaged in ethnic discrimination, rather than religious discrimination.  As Lady Hale said in the majority opinion:  “M was rejected, not because of who he is, but because of who his mother is” (§66, UKSC 15).  The Court instructed JFS to establish a new test that did not make determinations of Jewish identity based on ethnicity.
 
As a result, Orthodox schools each created a “Jewish Religious Practice Test,” which is now itself under threat of lawsuit.  The June 11 Jewish Chronicle article told of Kayleigh Chappelle, who had applied for admission to King David High School in Liverpool, England.  Like JFS, King David grants admissions preference for Jewish students.  There were ninety spots available, and ten Jewish applicants who potentially qualified for the admissions preference.  Kayleigh was the only Jewish applicant denied admission to the Orthodox Jewish school because her family could not satisfy the “Jewish Religious Practice Test.”  Kayleigh was born of a Jewish mother, making Kayleigh Jewish according to Orthodox law and the OCR.  Indeed, Kayleigh’s mother is even an alumna of King David.  However, the Chappelle family is not religiously observant.  The family is threatening to sue because Kayleigh has been denied the preferential admission to King David that the Chief Rabbi has instructed she deserves.
 
Lord Rodger, writing a strong dissenting opinion in R v. The Governing Body of JFS, anticipated the plight of Kayleigh Chappelle:  “The decision of the majority means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief…Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted.  That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching.  The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong” (§ 225-226, UKSC 15).
 
Indeed, Lord Rodger’s sensible caution in having the court weigh in on this matter is born out by Kayleigh’s story.  There are tragic consequences when an essentially secular court of law attempts to police the boundaries of religious identity and to answer the question: Who is a Jew? 
 
 
References:
 
Jonathan Kalmus, “Jewish girl’s King David place goes to non-Jew,” The Jewish Chronicle (11 June 2010): http://www.thejc.com/node/32947
 
R v The Governing Body of JFS (2009 UKSC 15): A PDF of the full court opinion is available by searching for “UKSC 15” at: www.supremecourt.gov.uk
 
 
Heather Miller Rubens is a PhD candidate in History of Judaism at the University of Chicago Divinity School, and a former Martin Marty Center Dissertation Fellow.  Next year will she will be an Ulrich and Harriet Meyer Dissertation Fellow at the University of Chicago Center for Jewish Studies.