The Case

Upon completing the eighth grade, Mona Jabareen, a religious female Muslim student from Umm al-Fahm, sought admission to the St. Joseph High School in Nazareth—locally known as the Al-Mutran (The Bishop) School. This school, highly acclaimed and selective,Footnote ⁵ is owned and operated by the Greek Melkite Catholic Church, which is one of the ten officially recognized Christian communities in Israel. Mona Jabareen passed the admissions exams and in March 1993 was notified of her acceptance. Before the school year began, Jabareen, like all other newly admitted students, attended an enrichment course. She came wearing a headscarf and maintained that this attire was mandated by her Muslim faith. The school informed the Jabareen family that under school regulations she cannot be admitted wearing a headscarf. During the attempts to settle the dispute amicably, Jabareen made it clear that the headscarf was not the only issue with which she could not comply. Pursuant to her Muslim faith, she would not be able to participate fully in other school activities such as physical education classes and recreational trips. For example, she asked to be allowed to wear a special dress for sports activities, and refused to participate in swimming lessons at all if male students would be present (Mona Jabareen 1993, 201).

The school rejected these demands. This brought Mona Jabareen to petition the Israeli Supreme Court in its capacity as the ultimate administrative court of the country. Jabareen argued that the Israeli minister of education (the primary named respondent) and the director-general of the Ministry of Education (the second named respondent) have supervisory authority over St. Joseph and thus should instruct the school principal (the third respondent) to admit her to school without making her attendance dependent on removing her headscarf or participating in other school activities. Jabareen justified her claim by her legally guaranteed freedom of religion and conscience.

The justice who authored the leading opinion of a panel of three justices was Aharon Barak, at the time the Deputy President of the Israeli Supreme Court. Barak's normative evaluation starts off by stating that were Mona Jabareen to seek admission “with her headscarf, as mandated by her religion, in a public school, then it would have been appropriate to recognize her right to do so” (Mona Jabareen 1993, 203). But St. Joseph, he goes on to hold, “is a private school, owned and operated by a recognized religious community that enjoys educational autonomy” (204). According to Barak, students who come to this school choose to do so voluntarily, and the school would not be in violation of the principle of equality if it were to choose to deny admission to students who do not belong to the particular religious community of the school (204). Barak highlights the fact that 55 percent of the students who attend St. Joseph are not Greek Melkite Catholics, and that one-third of the student body is Muslim (202). Moreover, the school requirement for a shared dress code was not instituted in the name of uniformity alone—for if this were the sole motivation, then once again Barak discloses that he would have been prepared to rule in favor of the petitioner. In this particular case, Barak says, the Court is convinced that behind the requirement of a uniform dress code and shared student activities there are educational considerations that are related to the school's nature (204). By insisting on a uniform dress code and the need to take part in joint activities the school seeks to promote pluralism by offering an environment with a common denominator among its diverse student body, composed as it is of Christians from different communities as well as non-Christians (204).

In his concurring opinion, Justice Eliezer Goldberg adds that even if the school were public it is not certain that it would not be entitled to insist on a dress code. In a religious Jewish public school that insists on its male students coming to school with a skullcap, he hypothesizes, one student might contend that on the basis of his right to religious freedom and conscience he should be relieved of this duty (204). In this case, Goldberg says, it is not certain that the student's right would prevail, notwithstanding the principles of tolerance and pluralism (205).

Seemingly, the conflict in Mona Jabareen is defined by the Court in liberal terms, that is, the individual right of the petitioner to freedom of religion versus the liberal interest of the school to assert neutrality and commonality (see Stopler Reference Stopler2009, 29). It is true that Justice Barak, in his opinion, did highlight the fact that St. Joseph is privately owned by a recognized religious community. Yet, the minority or majority status of the specific religious community, the fact that it regularly conducts religious activities on its premises, and the fact that it is largely publicly funded did not figure in his analysis. Irrespective of all of these, the school could still exclude or set conditions for admission to its ranks, as it did.

Critique

In what follows, I deconstruct the Mona Jabareen decision and argue that the normative outlook of the holding is flawed. To begin with, it is not clear why the Court characterized the St. Joseph School as a private rather than a public school. To operate as a school, St. Joseph, like any other school in Israel, needs the accreditation of the Israeli Ministry of Education (see Kleinberger Reference Kleinberger1969, 310). For the school to maintain its accreditation status, it must submit to the supervisory powers of the Ministry and these, effected by constant communiqués and visits by Ministry supervisors, seek to ensure that the school curriculum, as well as the teaching staff, meet the standards set by the Ministry itself (see Al-Haj Reference Al‐Haj1995, 98).

It is true that St. Joseph is classified as “recognized but unofficial” in terms of the general school structure in Israel. This status grants it some autonomy in its internal dealings and makes it possible to promote a particular curriculum, which can also be religious (Mona Jabareen 1993, 202). Despite its “unofficial” status, the school is still subject to the constant supervision by and accreditation requirements of the Ministry of Education. More importantly, its categorization makes the school eligible for public funding (see Mar'i Reference Mar'i1978, 63–64). As “recognized but unofficial,” the school receives 80 percent of its operational budget from the Ministry (Mar'i Reference Mar'i1985, 64; see also Al-Haj Reference Al‐Haj1995, 98). These formal elements, together with the fact that the school, like any other school, fulfills a public function of educating future active citizens, makes St. Joseph more public than private in nature.Footnote ⁶ Therefore, according to the very standards set by Justice Barak, the school should have been much more accommodating toward Mona Jabareen's claim of freedom of conscience because, arguably, schools that accept public funding cannot, even if religious, practice discrimination as if they were private churches (see Spinner-Halev Reference Spinner‐Halev2012, 49, 58).

Second, referring to pluralism as a guiding normative code commonly means respecting differences and accepting the legitimacy of diversity (Galston Reference Galston2002, 23). According to this general philosophy of pluralism, “we need mosaics, not melting pots” (Green Reference Green1998, 170). So if St. Joseph wanted to be faithful to its proclaimed pluralistic approach, then it should have admitted the headscarfed Mona Jabareen instead of setting conditions for her admission (see Levinson Reference Levinson1997, 335, 351). Seemingly, the least plausible theory to justify the school's actions is pluralism.Footnote ⁷ In the concluding chapter of Liberal Pluralism, William Galston writes: “if liberal pluralism means anything, it means internalizing norms and habits that restrain us from compelling others to live life our way rather than theirs, even when we have good reason to believe that their way is mistaken” (2002, 124). So pluralism does not mean commonality and uniformity. Its practice requires the creation of spheres in which differences are practiced and tolerated (Stolzenberg and Myers Reference Stolzenberg and Myers1992, 657).

It is true that pluralism does not prescribe legal relativism (Galston Reference Galston2002, 30) in the sense that there can be no objective standard for reconciling the values of different traditions. Pluralism assumes that there are primary values independent of specific cultures, and that these are essential for the public order and for the well-being of society (see Griffiths Reference Griffiths1986; Tilly Reference Tilly1998). Yet, when looking at the sorts of norms embodied in this common sphere in a pluralistic society, one finds only basic norms that seek to guarantee the conditions of public order (Galston Reference Galston2002, 65–66). These pertain to the existence of a judicial process by which rights are determined and the basic moral conditions preserving property rights and physical integrity are upheld (66–78). Yet we have recourse to this common sphere when the legitimacy of being different is first recognized. In the inner realm of St. Joseph, difference was first revealed—and disallowed—by denying Mona Jabareen the right to identify herself as a religious Muslim.

Third, there is something disingenuous in resorting to pluralism given what was known about the educational environment of St. Joseph. The “uniformity” that the Court ended up backing was that of a Catholic school, where prayers and religious ceremonies are held regularly, and whose administrators are Catholic priests who dress in the habits of their orders, but where a Muslim female student cannot come to school with a headscarf.Footnote ⁸ Additionally, Justice Barak highlighted the fact that St. Joseph started off as an educational institution for training Catholic priests and still does so today (Mona Jabareen 1993, 202). Students studying to be priests come to school in distinctive garb. True, the Court stressed in its opinion that non-Catholic students are exempt from the duty to participate in such religious lessons and prayers (202), but such an exemption seems in direct opposition to the uniformity principle on which the Court rests its holding. Indeed, the religious activities in school, the special characteristics that mark the school as Catholic, are anything but uniform.

It is important to note in this respect the German experience with restricting the Muslim headscarf in some of its states (Länder). Those who were first targeted by this restriction were the teachers, for endangering the value of “neutrality” (Joppke Reference Joppke2007, 53). Interestingly, this restriction on Muslim female teachers was observed even though in some of these German schools Christian symbols were tolerated (53–54).Footnote ⁹ In spite of this unbalanced attitude against the Muslim headscarf in German schools, the restriction did not apply to Muslim female students. As a matter of fact, one German court even relieved a Muslim female student from the obligation of taking part in coeducational sports activities, based on the student's freedom of religion (55). So, if one part of the school's mandate is to signify the importance of commonality and neutrality, it is surely the teachers and administration who should take the lead rather than the students.

Fourth, one can take issue with the logic of Barak's holding that if St. Joseph were a public school, Mona Jabareen's religious liberty, as expressed in her wearing the headscarf, would have prevailed over the interest of the school in maintaining neutrality in the dress code of its students. From a legal standpoint this outlook is justified under the pretext that public institutions are subject to more rigorous scrutiny from the judiciary and thus are more restricted in their internal administration than are private institutions. At the same time, one could also make the argument that if private institutions have a legitimate interest in advancing the practices of neutrality among their students, then a public institution would have an even stronger interest in doing so. One can logically assume that a public school would attract an even more diverse body of students and thus should have a stronger need than a private school to diminish the divides among them in the name of neutrality. The French experience with the ban on the Muslim headscarf in public schools lends support to this point (Levinson Reference Levinson1997, 351). When the freedom of Muslim female students to attend public school with a headscarf was restricted, one dominant justification for the ban was the need for commonality as a virtue of neutrality in the public sphere (see Bakircioglu Reference Bakircioglu2007).Footnote ¹⁰ Yet the logic as exhibited in the Mona Jabareen decision is just the opposite: neutrality can be an overriding interest of private, but not of public, schools.

The Case

The Jewish community in Israel, like that in the world at large, has long struggled with internal divisions. One is between religious and secular Jews. Another is between Jewish communities of eastern or North African descent, commonly known as Sephardic or Mizrahi,Footnote ²⁰ and Jewish communities of European descent, known as Ashkenazi. This latter division is so pervasive that communities with varying degrees of religiosity can still be divided by ethnicity along Sephardic and Ashkenazi lines. This happens also in the ultra-Orthodox Jewish community. Different schools and yeshivas usually serve the Sephardic and Ashkenazi ultra-Orthodox communities. The two communities at times follow different teachings, abide by different codes, and form different political parties to tend to their needs.

Immanuel is a Jewish settlement in the occupied West Bank, established in 1983 (Shoshana and Ginsberg Reference Shoshana and Yona2013, 241). In 2008, when the petition in question was brought before the Supreme Court, the settlement had a total population of 2,700 ultra-Orthodox Jews (Bass Reference Bass2008). The settlement had two all-boys elementary schools—one Ashkenazi and one Sephardic. In addition, it had one all-girls school: Beit Ya'acov. Tensions within the community began to mount around 2006 when a substantial community of ultra-Orthodox Jews who embraced religious life after being secular settled in Immanuel. This community was mainly of Sephardic descent (see Shmueli Reference Shmueli2013, 268). The major cause of these tensions was the fact that this community of newcomers did not altogether internalize the strict norms of ultra-Orthodox life, using at times words and phrases that other members regarded offensive (Bass Reference Bass2008, 5–6). The sentiment in the settlement was that the young girls of the old ultra-Orthodox community, Ashkenazi and Sephardic alike, would be adversely affected if they interacted with the girls of the newcomers (6).

Initiatives to create a new school for the more conservative families were unsuccessful. Then, in the summer of 2007, the Ashkenazi ultra-Orthodox community sought separation within the confines of the existing Beit Ya'acov School while the Sephardic ultra-Orthodox community sought to create a new school of its own (Bass Reference Bass2008, 6). Ultimately, the objective of separation within the existing school bore fruit. The school was divided into two sections. Each section now had a different dress code, a different administration, a separate playground, and a separate teachers' lounge. A physical structure was erected to signify the separation. The end result of this process was the establishment of two schools in the area of what previously was one school (8). It is important to add that it was the new section that administered an admissions procedure—admitting only those girls who were deemed “suitable” (6). In terms of numbers, the old school now had 139 students, 107 (77 percent) Sephardic and 32 (23 percent) Ashkenazi, and the new school had 79 students: 58 Ashkenazi (73 percent) and 21 (27 percent) Sephardic (10–11). These numbers were assembled by the special investigator, attorney Mordechai Bass, a former senior official in the State Comptroller's Office, appointed by the Ministry of Education.

In Bass's opinion, the division created in the Beit Ya'acov School was administratively improper, yet it was not motivated by a discriminatory policy on the part of the new school against Sephardic students. A critical piece of evidence in this regard was the fact that Sephardic girls who (through their parents, of course) were willing to accept the terms and conditions of conduct of this new school were actually admitted. This, in his opinion, was a testament to the fact that the split in Beit Ya'acov was motivated by religious conservatism on the new school's part rather than by a discriminatory policy against Sephardic students (Bass Reference Bass2008, 13).

Parents of a number of Sephardic pupils protested to the Ministry of Education, arguing that the actions carried out in the school were designed to discriminate against the Sephardic students and their parents. As a result of a number of meetings that took place between Ministry officials, including those of the department in charge of ultra-Orthodox schools, it was settled that the school could have two educational programs, one general and one Ashkenazi. Students would have the option of choosing between the two. However, those who opted for the Ashkenazi program would need to abide by a certain set of rules embodied in the bylaws.

According to these rules, parents must accept the authority of a certain rabbi, girls may not ride bicycles outside their homes, parents must make sure that their girls come in contact only with other girls who abide by the spirit of Beit Ya'acov, the girls must not listen to radio, watch television, or possess a computer with Internet access, and the parents must abstain from taking the girls to hotels or any other recreational facility or be hosted in the homes of relatives or friends who are not observant Jews (No'ar Kehalakha 2009, para. 7). The one rule that was disapproved by the Ministry of Education was that the Sephardic girls had to pray according to Ashkenazi rite, and to recite the text in the Ashkenazi pronunciation used for praying (para. 7). This last rule, though disqualified, was further evidence of the fact that the Ashkenazi faction in the school was pushing for a much more conservative educational policy, and that the Sephardic section was struggling to adapt.

Justice Edmond Levy, who authored the lead opinion on behalf of a unanimous panel of three justices, concluded that the separation in this case was motivated by ethnic considerations rather than by religious ones. In its essence, the Ashkenazi section of the school as well as the Ministry department in charge of ultra-Orthodox schools sought to exclude the Sephardic students from the Ashkenazi section of the school solely on the basis of their ethnicity (No'ar Kehalakha 2009, para. 26).

Justice Levy was certainly aware of the fact that the education system in Israel is divided into different sectors, each having an educational agenda of its own. He was also a supporter of the idea that sectarian education is important and has legitimate objectives (No'ar Kehalakha 2009, para. 14). However, he held that when the school rules have the sole objective of restricting admission of a certain part of the population, they are considered to be discriminatory and therefore invalid (para. 26). In his opinion, the physical divide created in the school is equal to the testimony “of a thousand witnesses on the discriminatory intentions of those [the Ashkenazi section] who insisted on the separation” (para. 26). It was evident that what guided Justice Levy was the notion that separating between students on the basis of their ethnicity is unequal treatment, in line with the basic proposition of the landmark case of Brown v. Board of Education (1954) that separateness is inherently unequal (No'ar Kehalakha 2009, para. 24; see also Aronson and Shoshana Reference Aronson and Shoshana2013, 9).

This same notion was echoed in the concurring opinions of the two other justices, Edna Arbel and Hanan Melcer. Justice Arbel spoke about the bylaw that mandated prayer in an Ashkenazi accent, and took it as indicative of the true intention of the separation, which was insulting and degrading to the Sephardic students and their parents. Justice Melcer added that what had happened in the school was offensive also to the principle of human dignity as enshrined in the Basic Law: Human Dignity and Freedom (No'ar Kehalakha 2009, para. 2). Students were classified into two different campuses on the basis of their ethnicity—an act that is inherently degrading and offensive (para. 3). It is no surprise that the actions of the Sephardic ultra-Orthodox parent who spearheaded the legal battle in No'ar Kehalakha were considered by two scholars as comparable to those of Rosa Parks, the African American who defied segregated buses in Alabama in the 1950s (Dahan Kalev and Ferber Tzurel Reference Dahan Kalev and Ferber Tzurel2013, 84–85).

In light of all this, the Court declared that the right of the concerned Sephardic students to equality was denied. The school was ordered to eliminate all substantial and formal signs of separation. Should the school not comply, the Ministry of Education was instructed to take all necessary legal measures, including revocation of the school's license and withholding of its budget.

In the real world, nothing changed (Perry-Hazan Reference Perry‐Hazan2013, 180). The parents from the Ashkenazi section of the school refused to send their daughters to the integrated school. So the discriminatory practice of separation continued during the following school year of 2009/2010 (see No'ar Kehalakha May 17, 2010, June 15, 2010, September 14, 2010). Eventually, thirty-five of these parents were held in contempt, fined, and detained (Shoshana and Ginsberg Reference Shoshana and Yona2013, 239). But soon afterward, these proceedings became moot, given that an ad hoc compromise was reached for that school year (No'ar Kehalakha June 27, 2010). More importantly, when the new school year of 2010/2011 opened, the Ashkenazi section sought and received a license to open a new school that was in full control of its admissions policy but was not eligible for government funding.

The Israeli Supreme Court, in its final decision in the contempt proceedings, rendered on September 14, 2010, was well aware that this new school was essentially a scheme to circumvent its original holding (No'ar Kehalakha September 14, 2010). The Court was also aware of the fact that although this new school was not legally eligible for government funding, schools with the same status did receive substantial state funding, equal to 55 percent of the funding received by a regular public school (para. 16). Therefore, the Court stressed the fact that the Ministry of Education, as well as the local government authorities that intended to supplement this budget, should withhold such funding if the discriminatory practice continues.

Once again, the Courts referred to the legacy of Brown v. Board of Education (1954) and the process associated with desegregation in US schools in the wake of the landmark holding (No'ar Kehalakha September 14, 2010, para. 14; No'ar Kehalakha June 15, 2010, para. 7; No'ar Kehalakha May 17, 2010, para. 20). But to no avail. Researchers who visited Beit Ya'acov in 2011 testified that the school was still divided into separate sections: the first floor, with a separate entrance, was for Ashkenazi ultra-Orthodox girls and the third floor for Sephardic and Habad girls (Shoshana and Ginsberg Reference Shoshana and Yona2013, 249). Sensing that something more than legal proceedings was needed in order to end discrimination at Beit Ya'acov, the Court ended its last pronouncement by hoping that the parties would ultimately embrace the virtue of unity, quoting biblical scripture that recalls how “the tribes of Israel gathered together”Footnote ²¹ and instructing: “Love thy neighbor as thyself” (No'ar Kehalakha September 14, 2010, para. 20).

Critique

The constant reference in No'ar Kehalakha to the landmark case of Brown v. Board of Education and its holding that separate education is inherently unequal gives the impression that the Israeli education system supports integration. One could think there was now a norm of constitutional significance in Israel that deemed separate education discriminatory. It is true that the Israeli Supreme Court took its stand with respect to the Sephardic-Ashkenazi divide within the Israeli Jewish ultra-Orthodox community. As a matter of principle, it would seem, this sphere cannot be separated from other spheres. So if divisions on ethnic grounds within the Jewish ultra-Orthodox community are deemed improper, why not deem as improper divisions along national (Jewish-Arab) and religious (secular-religious, Christian-Druze) lines?

It is intriguing to note that the Court in No'ar Kehalakha was prepared to infer the discriminatory treatment by the Ashkenazi section of the school toward the Sephardic students on the basis of the empirical facts provided by Mr. Bass, who found that in the newly established Ashkenazi section, the student body was 73 percent Ashkenazi and 27 percent Sephardic. Mr. Bass's conclusion that these numbers could be explained by the stricter, more conservative religious norms of the Ashkenazi group did not satisfy the Court, which considered the disparity in the numbers as overwhelming evidence of discriminatory treatment on the part of the Ashkenazi section.

But when looking at the Israeli education system as a whole, the reality of separate educational institutions for different national, religious, and ethnic communities seems to be the rule rather than the exception. In fact, one Israeli legal scholar has already noted that the “basic premise” of the Israeli school system is “separate but equal” with the “separateness being primarily on religious grounds” (Goldstein Reference Goldstein1992, 158). At the national level, two main educational frameworks exist, one for Jews and one for Palestinian Arabs (Okun and Friedlander Reference Okun and Friedlander2005, 165). The Palestinian Arab section is itself divided along ethnic-religious lines, with a different school system for Arabs, for Bedouin, and for Druze and Circassians (Maoz Reference Maoz2006, 693–94). Within this general system there are also a number of Christian schools, such as St. Joseph, operated by the different local Christian communities (see generally Blass Reference Blass and Dan2012).

Within the Jewish community, there are three major official divisions: public secular, public national religious, and ultra-Orthodox (see Benavot and Resh Reference Benavot and Resh2003, 176–77). Most importantly, the ultra-Orthodox education system has been for some three decades officially divided along ethnic lines—a special school system for the Sephardic community run by Ma'ayan ha-Hinukh ha-Torani (the Wellspring of Torah Education) established and run by the Sephardic political party Shas (acronym for Shomrei [guards of] Sepharad) and the original ultra-Orthodox school system run by the Independent Religious Education Network dominated by the mostly Ashkenazi ultra-Orthodox religious party Agudat Yisrael (Lehmann Reference Lehmann2012, 1034). In the Shas schools, “teachers and students are practically all Sephardim” (Siebzehner and Lehmann Reference Siebzehner and Lehmann2008, 30). These divides, depicted as creating “educational enclaves” reflecting the sectarian enclaves that exist in Israel as a whole (30), make the Israeli educational system largely segregated (Al-Haj Reference Al‐Haj1995, 122–24).

While this segregation is not mandated by law, but is, instead, the result of many ad-hoc arrangements over the years, the Court in No'ar Kehalakha relied on the empirical reality in terms of the number of Ashkenazi and Sephardic students in the two sections of the Beit Ya'acov School in order to infer the existence of discrimination. Therefore, if the holding in No'ar Kehalakha is to be taken at face value, the whole sectarian educational system in Israel is discriminatory and should be abolished. However, neither in the case itself nor in the commentary that came in its aftermath was such a suggestion put forward or even considered. So in essence, the holding in No'ar Kehalakha reflects a double standard: it condemns separation between Ashkenazi ultra-Orthodox students and Sephardic ultra-Orthodox students in a school in Immanuel in an education system where separation exists at every level—national (Arab and Jews), religious (public, public religious, ultra-Orthodox, Christian, Druze/Circassians), ethnic (Shas schools and the Independent Religious Education Network), and gender (boys and girls). What the Israeli Supreme Court did in No'ar Kehalakha could be comparable to the US Supreme Court declaring that segregation between whites and African Americans is illegal but segregation between Irish, Italian, Hispanic American, Christian, Jewish, and Muslim, as well as separate schools for boys and girls, is not. While this may be a (rather improbable) interpretation of Brown v. Board of Education, it goes entirely against the spirit of that ruling.

The stand taken by the Court in No'ar Kehalakha becomes even more problematic if we look once again to the pronouncements of Justice Barak in Mona Jabareen. In clarifying the legal norms that govern the admissions policy of St. Joseph School, Barak explicitly submitted that St. Joseph would have acted within its powers were it to restrict admission to Catholic students only (Mona Jabareen 1993, 204). So essentially, St. Joseph could have been 100 percent Catholic and this separateness would have been legal, but if the Ashkenazi section of the Beit Ya'acov School in Immanuel is 73 percent Ashkenazi, then this separateness is illegal. Once again, how is this legal outlook compatible with the principle of equal treatment as set forth in Brown v. Board of Education?

Another aspect of the No'ar Kehalakha decision I want to take issue with is the Court's sterile individualist outlook. The individual rights to equality and human dignity of the excluded Sephardic ultra-Orthodox girls were the central values that guided the Court. This individualistic stance was so pervasive that no reference was made in the decision to the Sephardic community as a distinct community, nor to the long history of mistreatment and discrimination suffered by this community at the hands of the Israeli Ashkenazi establishment (Bitton Reference Bitton2011, 503; 2012, 284, 285–86). At this point, I would like to challenge the Court's individualistic outlook as projected in the No'ar Kehalakha decision and argue that even in this respect the Court's analysis is insufficient.

It is essential to recall that in the background of No'ar Kehalakha was the quest of the Sephardic ultra-Orthodox students, or rather their parents, to be admitted to the Ashkenazi section of the school. As we shall see later on, the Sephardic ultra-Orthodox community has always looked up to Ashkenazi ultra-Orthodox and the latter have traditionally looked down on Sephardic religious tradition (Friedman Reference Friedman, Keith and Joel1993, 196). Elite Ashkenazi ultra-Orthodox educational institutions that were willing to admit Sephardic students had a quota system, a numerus clausus that restricted Sephardic access to Ashkenazi schools. In fact, two researchers have claimed that one central motivation of the parent who spearheaded the legal and public battle in No'ar Kehalakha was his own experience of rejection when, as a young student, he sought admission to an Ashkenazi ultra-Orthodox school (Dahan Kalev and Ferber Tzurel Reference Dahan Kalev and Ferber Tzurel2013, 74).

So the battle in No'ar Kehalakha was not over the Sephardic ultra-Orthodox community's demand for its own independent education system, which exists, nor about integration for the sake of integration. Rather, at its base, the parents' demand was about having their girls be admitted to Ashkenazi ultra-Orthodox educational institutions (Dahan Kalev and Ferber Tzurel Reference Dahan Kalev and Ferber Tzurel2013, 71). But why were the Ashkenazi ultra-Orthodox so sought after by Sephardic ultra-Orthodox community members? Mainly because of the perceived strict observances of Jewish Halakha, and the learned tradition of those who guided these institutions (Leon Reference Leon2013, 176).

The conservative religious outlook of the Ashkenazi ultra-Orthodox tradition was clearly embodied in the bylaws of that section of the Beit Ya'acov School that the Sephardic girls were asked to consent to as a condition for their admission. As mentioned above, among other things, the girls were not allowed to ride a bicycle outside their homes (but boys can, of course); and the ability of the girls to interact with others who were different, or of discovering the world through the Internet, was genuinely curtailed.

These rules of conduct were known by the Court, as Justice Levy cited them in his decision (No'ar Kehalakha 2009, para. 7). Yet none of these instructions were perceived to be problematic. The main provision of the Ashkenazi section's bylaws at Beit Ya'acov that the Court took issue with was the fact that the Sephardic students were required to say their prayers using Ashkenazi pronunciation—a provision that was revoked months before the Court rendered its decision. But can the individualistic outlook, concerned with autonomy, human dignity, and equality, be supportive of a school system where students and their parents are committed to such a code of conduct? I do not think so, and yet the Court disregarded this aspect entirely.

The problem of illiberal internal norms practiced by groups seeking accommodation from the state is a central issue in the literature dealing with minority group rights. The problem becomes especially persistent when the minority group seeking accommodation is not merely asking for some form of external protection against the hegemonic majority group, for example, receiving official status for a minority language or having some form of representation in government bodies, but rather when the accommodation sought is designed to give it power to assert its own norms over its members—commonly known as accommodations with internal restrictions.

The grant of judicial autonomy in matters of personal status or having government funding and independence in minority schools are examples of such accommodations. These powers enable a minority group to apply its own norms and indoctrinate individual members in its own tradition, at the same time as such norms and traditions can be discriminatory toward women or incapacitate individuals as such. The bylaws of the Ashkenazi section of the Beit Ya'acov School just surveyed are a powerful example of an accommodation with an internal restriction that is patriarchal and debilitating in terms of the capacity of the girls attending this school to judge and handle the complexities of modern life and become active citizens.

Views vary as to what should be done in the case of accommodations with internal restrictions. One suggestion is that no accommodation is to be afforded by the state that is of the internal restriction type. For how can it be possible for liberalism, which is taken to be the normative bedrock for accommodating minority groups in many Western democracies, to allow for the protection of groups that are ready to apply illiberal norms to its members? But this can be too harsh a measure. Groups, especially religious ones that do not have the capacity of applying their norms to group members, will have difficulty in sustaining and preserving themselves. Thus, other measures were suggested, such as guaranteeing the right of exit to group members who do not wish to abide by the internal restrictions of the group. This measure may be adequate theoretically but has proved difficult to effectuate in practice. Let us take, for example, the students of Beit Ya'acov, Ashkenazi and Sephardic alike, who might not be interested in leading an ultra-Orthodox life: they have no real choice in the matter.

The discussion on how to deal with internal restrictions of minority groups seeking accommodation is wide-ranging. The conflict between liberal individualist ideals and the freedom to practice one's religion in schools is central both in political and legal theory (see, e.g., Arneson and Shapiro Reference Arneson, Shapiro, Ian and Russell1996; Lipkin Reference Lipkin1996; Macedo Reference Macedo2000; Dagovitz Reference Dagovitz2004; Fernández Reference Fernández2010). In fact, many staunch liberals believe that schooling, especially if funded by the state, should guarantee that students be provided with the proper skills and knowledge to think critically about various beliefs, including their own (McDonough Reference McDonough1998, 469, 476; Levinson Reference Levinson1999, 53). This notion of comprehensive liberalism strenuously holds that values of personal autonomy and liberty are superior to all others (see Gutmann Reference Gutmann1999, 88).

Others, who take a more nuanced liberal outlook, known as political liberalism, do not seek to enforce liberal norms, but rather to provide for adequate norms and mechanisms that guarantee toleration (see Macedo Reference Macedo1995). But even then, followers of political liberalism are mindful of the fact that children are not an extension of their parents in the sense that the religious identity of their parents should not, in the name of religious liberty, be automatically extended to the children. Children need to become aware of alternative ways of life in order to be able to make choices of their own (486).

In light of all this, one sees how incapacitating the bylaws of the Ashkenazi section of the Beit Ya'acov School are. Yet the Court in No'ar Kehalakha had nothing to say about this, even though the rhetoric of its decision relied heavily on values of liberalism and individualism. The Court's holding in No'ar Kehalakha that essentially sought to safeguard the Sephardic students' right to become part of the Ashkenazi section in the name of equality and individualism is baffling at best. The paradigm underlying Brown v. Board of Education assumed that if African American students are admitted to the schools of white children, they will have a better chance of receiving equal treatment and attaining higher achievements. This would obviously not be the case if the Sephardic students were to gain admission to the Ashkenazi section of Beit Ya'acov; rather the opposite. In terms of their capacity to establish critical thinking and choose between different ways of life, these girls will be worse, rather than better, off. In my opinion, the paradigm of the exclusion of the Sephardic girls in No'ar Kehalakha is more akin to that in Wisconsin v. Yoder (1972).

In that case, the US Supreme Court supported the freedom of conscience claim of Amish parents who took their children out of school at the age of fourteen and before the mandatory education age of sixteen. The holding was criticized for undermining the capability of the Amish children to understand the complexities of modern life and to be able to make decisions of their own in the future (Arneson and Shapiro Reference Arneson, Shapiro, Ian and Russell1996; see also Kymlicka Reference Kymlicka2001, 300, 304). However, this was with respect to the Amish children themselves. Let us suppose, for the sake of discussion, that these Amish children were educated in the Amish community's educational institutions where patriarchy reigns and no connection to the outer world is permitted.

Now imagine that a non-Amish individual seeks admission for his three daughters to these Amish educational institutions, but is denied solely because of their ethnicity. In terms of religion, this nonmember is willing to commit himself as well as his daughters to Amish teachings and lifestyle. Will he have the right to call upon principles of individualism and equality and ask that his daughters be admitted? If the principles of individualism and autonomy can be stretched in order to safeguard the right of the Amish community to protect itself as a minority by having some power to educate its own children, these principles will need to be stretched even further in order to grant the Amish community the authority to educate nonmembers.

But this point was totally ignored by the Court as it did not take the Wisconsin v. Yoder case as its paradigm. What makes the Israeli Supreme Court's failure in this respect even more troubling is that, unlike the Amish community, which is relatively small, fragile, and politically powerless, the Ashkenazi ultra-Orthodox community in Israel is steadily growing and has substantial political power.Footnote ²² This suggests that basic notions tending to individualism and autonomy should be all the more forcefully applied to an Ashkenazi ultra-Orthodox educational institution. The least plausible option in this respect is to grant the Ashkenazi ultra-Orthodox institution the power not only over its own members but over nonmembers as well.

Circles with Edges

My analysis thus far has demonstrated that if we approach the legal dilemmas presented in Mona Jabareen and No'ar Kehalakha through the prism of group rights, especially those of the minority group, then the conclusion reached in both decisions becomes more convincing than if we were to analyze the case through the prism of individual rights, especially when these rights are detached from the groups these individuals belong to and from the power structure that prevails among them. So it is the perception of the groups involved, their status and history that brings us to a more refined and precise analysis, in contrast to the individualistic analysis undertaken by the Court.

I emphasize this point because analyzing and determining rights with respect to groups rather than individuals has been severely criticized as being blunt and crude, and promoting cultural essentialism (see, e.g., Bielefeldt Reference Bielefeldt2000). At times, individuals seek to justify their illegal actions, claiming that they were acting according to what their culture mandates or at least legitimizes. Such is the case with so-called honor killings, in which (usually male) members of the family murder other (usually female) members for ostensibly sullying the family's honor. This claim, when raised in court, has come to be known as the cultural defense (Dundes Renteln Reference Dundes Renteln2004, 5).

This position has been criticized for viewing the relevant group as having a fixed and static set of norms that excludes other interpretations. This is why the perspective of group rights has been condemned, and that of individual member rights has been extolled, for they can emerge as contested and dynamic (see Deckha Reference Deckha, Marie‐Claire and Alison2009, 264). Another criticism of the crudeness of the group perspective is the problem of the minority within the minority, mentioned earlier (see Eisenberg and Spinner-Halev Reference Eisenberg, Spinner‐Halev, Avigail and Jeff2005, 3). It is certainly necessary to be mindful that the accommodation of a minority group might empower the group to apply norms that are discriminatory and degrading with respect to certain members. Many religious groups hold and apply norms that are patriarchal in nature and therefore disadvantage women in relation to men (Okin Reference Okin and Joshua1999). So if religious groups are granted judicial autonomy over the family law matters of their members, this might have adverse effects on women (see Deveaux Reference Deveaux2006, 3). Consequently, a cautious attitude is called for when the group accommodation can be supportive of the group but degrading in terms of certain individuals therein.

Last, affirmative action schemes are constantly being challenged as damaging and discriminatory (see Rubenfeld Reference Rubenfeld1997, 428). They can be damaging in terms of the individual minority group members who are stigmatized as incapable and, but for the affirmative action policy, would not have been admitted to this or that university or received a particular job (see Kennedy Reference Kennedy1986, 1330). Affirmative action schemes can also be discriminatory with respect to nonminority group members who, in spite of their outstanding qualifications, can be denied university admission or a particular job (see Spann Reference Spann1995, 7). This suggests that determining rights and entitlements with respect to groups is too rudimentary for a modern-day legal system, but the analysis applied in this article demonstrates just the opposite. Relating to discrimination and exclusion only in terms of individualism can also be crude and blunt.

What refines and sharpens the issues involved, in our case the exclusionary power of a religious school, is the group rights perspective. This does not mean that the group rights perspective is better. The individual rights of minority group members require constant vigilance and maintenance. But looking beyond individuals to the groups they belong to can be equally instrumental in analyzing the proper relations of rights when individuals ask courts to remedy a seemingly discriminatory act. This perspective can also be helpful in settling future dilemmas. It is certainly true that limiting a Muslim student's right to wear a headscarf in a public Israeli university, even one with overt Jewish values, is more discriminatory than limiting a Jew from displaying outward signs of her religion in an institution run by and for a minority religious group. In one case, the university identified with the Jewish majority group is actually restricting the freedom of minority religion members, so the act of exclusion should be taken as illegitimate, at least as a default position.

In the other case, the educational institution belongs to the minority religious group, and so it does have a legitimate interest in restricting distinctive religious symbols of other groups, once again as a default position. This group jeopardizes much more if it loses its distinctiveness, while the distinctiveness of an institution controlled by the majority will be less jeopardized. More importantly, also from the perspective of the individual rights of freedom of conscience and human dignity, the axiom proposed by the Court in No'ar Kehalakha is that discrimination is said to exist when the basis for individual exclusion is the person's group identity.

The normative edge of the circles drawn by the Court was especially evident in No'ar Kehalakha. The Court quoted the Bible, enjoining the parties to be as “the tribes of Israel gathered together,” to stress the virtue of Ashkenazi-Sephardic togetherness, and imply that an integrated school is preferable to dividing the school into two separate sections. This is possible only if one circle is drawn around both Ashkenazi and Sephardic schools, emphasizing their consonant religious and national identity. Drawing different circles around the groups marks the difference between them, and the Court deems this to be improper. The unitary position, connecting Ashkenazi and Sephardic Jews in Israel, resonates well with the dominant social policy, which was once the official policy of the state for the “ingathering of the exiles” (kibbutz galuyot) and creating a melting pot assists in this endeavor (see Bitton Reference Bitton2012, 281–82).

What about Palestinian Arab unity and the religious divides that split the members of this community? Indeed, what about the unity of the citizens of Israel altogether, irrespective of their religious and national affinity? Is the Israeli Supreme Court prepared to take a position on these issues as on Ashkenazi and Sephardic unity? With reference to this latter question, the Supreme Court does not seem to recognize the existence of one circle that unites all Israeli citizens. This was reaffirmed recently when the Court reiterated its holding from over thirty years ago that under the rubric of “nationality” in public records, the term “Israeli” cannot exist, but only one of the officially recognized identities such as Jewish, Arab, Druze, and the like (Ornan v. State of Israel 2013). In terms of the divisions among the Palestinian Arab religious communities, the Jewish establishment worked to stress them in order to control the Palestinian Arab minority better. I believe that sooner or later the design of circles will evolve in Israel, and the normative edge of these circles will evolve by sharpening a new surface while dulling the existing one.