Comparing U.S. and UK Courts' Approaches to Racial and Religious Preferences
	By VIKRAM DAVID AMAR AND ALAN BROWNSTEIN
	Friday, January 15, 2010

Increasingly, American lawyers and legal analysts engage in "comparative law," looking to the ways in which other countries resolve particular legal questions to uncover lessons that might be learned and brought home to the United States. In this column, we undertake a bit of comparative analysis by examining a legal case from Great Britain, R (on the application of E) v. Governing Body of JFS, [Dec. 16, 2009] UKSC 15, that has the potential to shed some useful light on American constitutional doctrine and analysis. The case involves the extent to which religion and -- according to some conceptions -- race may be taken into account in school admissions.

The UK Case's Background and Reasoning

In December 2009, the Supreme Court of the United Kingdom held that a Jewish school had violated the ban on racial discrimination set forth in Great Britain's Race Relations Act (1976), a prominent legislative enactment codifying prohibitions against certain kinds of improper unequal treatment. Specifically, the UK court held that the school's admissions policy illegally discriminated on the basis of race and ethnicity because it extended a preference to children who are Jewish either by matrilineal descent or as the result of a conversion that satisfies the requirements of Orthodox Judaism.

In the case at hand, the child's mother was not born Jewish and her conversion to Judaism took place under the auspices of a non-Orthodox synagogue. Accordingly, the school determined that the child was not to be considered Jewish, and thus was not entitled to the admissions preference he would otherwise have enjoyed. As a result, he was denied admission to the school.

The British court struggled with this case, for understandable reasons. One critical question it was required to address was whether the differential treatment of school applicants in this case constituted religious discrimination, as opposed to racial discrimination. If the case were deemed to involve only religious discrimination, then the disappointed student would have lost his case, because religious schools in Britain are permitted to discriminate on the basis of religious belief. In contrast, however, direct discrimination by schools on the basis of race is categorically prohibited. The majority of the court concluded, on this crucial issue, that the Jewish school's admissions policy constituted discrimination based on ethnic descent (which is considered by British law to be a subset of race), and, as such, was prohibited.

The court acknowledged that the school's standards derived from religious belief and were thus religiously-motivated. The court concluded, however, that the motives of an actor or institution engaged in direct racial discrimination were entirely irrelevant to the legality of the discriminatory conduct under the Race Relations Act. In other words, if someone engages in a practice, or makes a decision, that is determined to be race discrimination, then that conduct is prohibited regardless of what the discriminating actor's motives might be.

The Complicated Implications of the UK Ruling and Its Relevance to America: US Supreme Court Precedents on Lineage

The court, in holding in favor of the student, was clearly unsettled by the possible implications of its decision. Under its ruling, Jewish schools in Britain would be prohibited from applying the accepted theological standards of Orthodox Judaism to determine who was Jewish for purposes of trying to maintain a Jewish student body. This is an ironic outcome, since, in effect, a statute (the Race Relations Act) that was intended to protect minorities from discrimination was being employed by the court in a way that prevented a minority from maintaining its religious identity. The solution to the problem, the court suggested, might lie with Parliament – the branch of government with the authority to create an exemption from the Act itself.

While we have a variety of thoughts about this case, we will focus in this column particularly on how the ruling might inform United States constitutional law and legislative policy. There is little American case law focusing on discrimination that is based on lineal descent in our constitutional jurisprudence. Kotch v. Board of River Port Pilot Com'rs, a 1947 case in which the U.S. Supreme Court evaluated an equal protection challenge to a Louisiana policy that limited access to river pilot licenses to descendants and family members of previous license-holders, might be the closest case on point.

In that case, the Court rejected the plaintiff's challenge to the lineage-based scheme. But note that equal protection doctrine in the late 1940s was very underdeveloped, to say the least. (Some readers might recall that just a few years earlier, the Court had upheld, against an equal protection challenge, the federal government's policy of interning American citizens of Japanese ancestry).

Even in Kotch, however, dissenting Justice Rutledge, writing for himself and three other Justices, expressed his misgivings about the result the Court reached – pointing out the close connection between discrimination based on bloodline and discrimination based on race. He reasoned as follows: "[W]hen the test adopted and applied in fact is race or consanguinity, it cannot be used constitutionally to bar all except a group chosen by such a relationship from public employment. That is not a test; it is a wholly arbitrary exercise of power."

More recently, a decade ago in Rice v. Cayetano the Court struck down a provision of the Hawaiian Constitution that had limited the right to vote for the trustees governing a state agency to "persons who are descendants of people inhabiting the Hawaiian Islands in 1778." Finding that ancestry was a proxy for race in this case, the Court concluded that this restriction on voting violated the Fifteenth Amendment ban on racial discrimination in voting.

Comparing and Contrasting the British Decision's Arguments to Those Made by American Conservatives

Putting Kotch and Rice aside for the moment, we think that there are important analogies to be explored and lessons to be learned by comparing the logic of the recent British decision described above to the analysis of American affirmative-action policies as a matter of constitutional rhetoric and equal protection doctrine.

The core argument presented by many conservative commentators and jurists in America is that race-based affirmative action programs in contexts like school admissions are racist and just plain wrong, both as a matter of morals and constitutional principle. There is no distinction, they say, between invidious racial discrimination that is designed to subjugate an out-group and racial discrimination that is intended to serve the benign or remedial purposes of including groups that had traditionally been excluded. While the British court reaches a similar legal conclusion in the Jewish school case, the opinions that were filed in that case make it abundantly clear that the British court rejects the normative conclusions advocated by American conservatives.

The British judges concluded that because motive is formally irrelevant to the application of the Race Relations Act, in light of the statute's language and prior precedent construing it, a benign motive cannot save a directly discriminatory, race-based action. But that technical legal conclusion is in no way designed to carry with it any normative condemnation of such action. Indeed, in a press release, the court insisted that its judgments "should not be read as criticizing the admissions policy of [the Jewish school] on moral grounds or suggesting that any party to the case could be considered 'racist' in the commonly understood, pejorative, sense. . . ."

This conclusion, which differs from the approach of American conservative jurists, is particularly important because the British court understands and acknowledges the harm caused by race-based decisions in exactly the same way that American conservative judges understand such harm: "Treating an individual less favorably because of his ancestry ignores his unique characteristics and attributes and fails to respect his autonomy and individuality," write the British jurists. This point is quite similar to what American conservative Justices have written about government action that takes race into account in allocating benefits and opportunities. In Parents Involved in Community Schools v. Seattle School Dist. No. 1, for example, Justice Roberts quoted Justice Kennedy in stating that " '[o]ne of the principal reasons race is treated as a forbidden racial classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.'"

So the British court and American conservatives start from a similar premise. But where the British court differs from its American counterparts is in its recognition that there are legitimate reasons that might justify formal race discrimination, notwithstanding those costs.

The Core of the Dispute: Can Formal, Non-Invidious Race Discrimination Be Justified, Despite Its Costs, If It Also Has Important Benefits?

And that is the key point of this column. If one thinks the holding of the British case is incorrect normatively (even if it is dictated by current British law), and we do, then the question is, "Why?" We do not think the ruling is incorrect because the student denied admission suffered no harm. To the contrary, we agree that his worth as an individual potential student was ignored and sacrificed. But we also believe that his sacrifice is legitimate in this case, because the policy that subordinated his interests substantially furthered the greater good. Here, that greater good consisted of the protection of the religious liberty and institutional autonomy of a religious minority. We think many American conservatives would understand, and even embrace, this justification.

Indeed, we see the same kind of justification supported by American conservatives in other religious-exemption situations. The applicant for a job – rather than for school admission -- who is denied employment with a religious institution for a position he or she is qualified to perform suffers similar harm to his or her individuality and his or her pocketbook – but Title VII creates an exemption for religious discrimination based on hiring for religious institutions.

Let us be clear here that we do not challenge the value or validity of the Title VII exemption. Indeed, we agree with it (at least for programs operated by religious institutions that are privately-funded, as opposed to government-financed programs serving public purposes). Nor do we suggest that racial preferences do not raise serious constitutional questions. We believe that they do. What we challenge is the contention that all race-based decisions are intrinsically invalid, even when they are designed to promote racial integration, or to remedy the effects of invidious racial discrimination.

While religious discrimination has had a long and pernicious history in the United States (and throughout the world), American conservatives recognize that in appropriate cases, religious discrimination may be justified when it furthers a sufficiently-important governmental interest, such as the protection of religious liberty. It is not clear to us why a similar analysis should not apply to benign and remedial racial classifications.

Put another way, if the discriminatory decisions by the British Jewish school that we described earlier in this column would be upheld in the United States because sufficiently important public interests justify the school's conduct, then why don't comparable justifications provide an acceptable rationale for the defense of American affirmative-action programs? We wonder why the harm caused by exemptions for religious discrimination is understood to be justified by the greater good (at least, some of the time), while similar harm caused by benign racial classifications is considered by conservatives to be absolutely unjustifiable all of the time.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.