Some thoughts in response to Susan

Thanks to Susan for her response to my post about the (very interesting) UK case holding that a Jewish school could not, in keeping with laws against race-discrimination, apply Orthodox rabbinical standards as to who is Jew in its admissions policies.  Susan writes:

This case involved a child who was not considered Jewish because his mother converted to Judaism after his birth.  Except in that technical sense, the child was Jewish in the sense of being raised in a Jewish home by parents who clearly wanted him educated into their faith.  It is hard to see how keeping such a child out of the school is necessary to maintain the school's "ethos."

In my view, this is one of those "who decides" question, rather than a question about whether I -- I'm not Jewish, let alone a Jewish authority -- think that "keeping such a child out of the school is necessary to maintain the school's 'ethos'."  If the question is "what decisions are necessary, by a religious institution, to preserve that religious institution's ethos," I'm reluctant to let civil authority have much (if any) of a role in second-guessing the answer that the religious institution gives.  What, after all, would be the justification for such second-guessing (even if we suspect that the religious institution's answer is (by what standard?) wrong)?

Susan also writes, with respect to the commentator, Mr. Moore, to whom I linked in my post:

Although Rick didn't quote this part of Moore's piece, I was also bothered by Moore's treatment of the difficulty to deciding when the law should interfere with religious decisions.  For Moore the answer is clearly no in this case, but clearly yes, when the issue is "resist[ing] Islamist attempts to advance the cause of sharia as a way of creating a parallel legal order (oppressive of women) in this country."  Why is it so clear that these should be treated differently?  Why are the school children deprived of a particular education less oppressed than women under sharia?  Maybe there is a good difference, but demontrating that requires more than a mere assertion.

I agree that more than a "mere assertion" is required, but it does seem to me that, at the end of the day, refusing to second a Jewish school's admissions decision (no child has a right to be educated at particular Jewish -- i.e., non-state -- school, do they?) is importantly different from allowing "Islamist attempt[s]" to operate a parallel legal order in a way that did deprive (say) women of that to which they have a right (i.e., protections against coercion and violence).  No?

A former student of mine, and an MOJ reader, sends in these thoughts:

I think Prof. Stabile is right to recognize that there is or may be a different chain of reasoning used to support hiring Jewish teachers versus admitting Jewish students to this school.   On a foundational level, however, I think both decisions are well rooted in the autonomy proper to private institutions as the West as traditionally recognized it.  A private institution, whether religious, educational, both, or other, worthy of the name chooses its membership itself on whatever basis it deems proper - whether that determination appears imprudent, silly, or "technical" to outsiders.  (I will admit that for myself the school's decision does seem "technical" to the point of being uncharitable and/or divisive.  But I have very little understanding of Jewish culture and maybe this is something important to them.)  The institution does not derive its creative authority from the government but from the individuals that make it up and therefore the government has no business telling the group who it should and should not admit. 

This approach certainly has its costs, as shown here where a young boy, probably very deserving in every other respect, would be denied access to one particular source of a quality education.  But this boy had no claim, in justice, on that education as far as we know.  The school was not built, maintained, and funded by the taxes of his parents, grandparents, or fellow citizens.  He was not defrauded from entrance, he simply didn't meet the explicit if exacting requirements; requirements set up long before his case arose.  There are plenty of other schools around, and it is no great legal tragedy not to get into the school of your desire.  Sad perhaps, but not unjust (not giving to one his due). 

The UK Supreme Court's decision, however, is unjust.  It does not give the religious institution its due.  This decision continues the trend in the West of breaking down the civil society that binds individuals and groups together by a thousand threads and in the aggregate stands as a source of civil authority distinct from the government.  See, e.g. Bowling Alone, It Takes a Family, Democracy in America, etc.  The breakdown of these mediating institutions is a far greater danger to the liberty of that boy than being denied access to a Jewish primary school, however superior its education.  It is even more disturbing that the institution is a religious one, whose entrance requirements are now deemed "racist."

Another reader sends in this:

First, I doubt that Orthodox Jews would agree that their laws, such as those of descent, birth, or kosher dietary laws, could be or should be reduced to "technicalities" that the State is authorized to waive when it desires. Second, and more substantially, what would happen if / when the state does force the school to accept this child? Surely, part of this child's education is that one is Jewish only when a certain set of conditions is met, and "M" will surely realize that, according to the school and likely many of his peers there, he is not, in fact, Jewish.  [Should] the UK government . . . intervene to adjust that part of the curriculum accordingly?

Tricky!  Any thoughts?