The Supreme Court handed down judgment in the case of R (E) v Governing Body of Jewish Free School (JFS) [2009] UKSC 15, on 16th December 2009. The case concerned an appeal by JFS against a decision of the Court of Appeal (Civil Division) holding that the school’s admissions policy directly discriminated against the son of E, on the grounds of race, contrary to section 1 of the Race Relations Act 1976 c. 74.

The son of E, M, was refused entry to the Jewish Free School because he was not recognised as a Jew by the office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (“the OCR”). A child of a Jewish mother is automatically Jewish under the matrilineal test. The problem arising in the present case was that the mother had not converted to Judaism by orthodox standards prior to the birth of M; as a consequence M was not recognised as being Jewish by the OCR. The question before the court therefore was what were the grounds for refusal and were these “racial grounds” for the purposes of section 3 of the Race Relations Act 1976?

Upholding the decision of the Court of Appeal and dismissing the appeal, the court, emphasised that it was necessary to draw a distinction between the ‘grounds’ for the decision and the motivation of the discriminator. The court was to identify the factual criteria applied by the discriminator in refusing M entry to the JFS. Rejecting the argument that the matrilineal test was a test of religious origin, the court, by majority, concluded that the test was essentially one of ethnic origin in the Mandla sense (see Mandla v Dowell Lee [1983] 2 AC 548). The sole basis of the decision to refuse M entry to the school was the lack of descent from a particular ethnic group; the present situation was a clear case of direct discrimination on the ground of ethnicity; discrimination based on the matrilineal test is to be considered discrimination on racial grounds and prohibited by section 1 of the Race Relations Act 1976.