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New Law Could Force South Africa’s Jewish Institutions to Serve Non-jews

March 16, 2004
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In a country with a long history of discrimination, South African Jews know how important it is to practice inclusion — and even sometimes force others to do so.

But when it comes to their own community, South African Jewish leaders are worried that new legislation aimed at preventing racial and other discrimination is threatening the Jewish character of the community’s educational and welfare institutions by forcing them to admit non-Jews.

If matters are not handled delicately, Jews could find themselves in a tough spot, as they try to defend their institutions’ Jewish character without appearing to be against the new non-discriminatory ethos emerging in South African society.

Called “The Promotion of Equality and Prevention of Unfair Discrimination Act,” the new bill was put forth in 2000 and introduced in 2003 on a test basis in parts of the country.

There are different parts to it: One section is aimed at outlawing hate speech; another deals with discrimination in social services.

The bill mandates the establishment of “Equality Courts” to hear complaints from people who feel they have been subjects of discrimination.

Jewish leaders have welcomed the hate speech section. But the part about discriminating in social services has potentially serious consequences for institutions that limit admission to Jews.

For example, under the new law, Jewish schools — which are attended by most Jewish students in the country — might be forced to open their doors to all South Africans. Because of the quality of education there, the schools could attract as many non-Jews as Jews, altering the schools’ Jewish character and threatening their mission.

The same goes for welfare institutions like Jewish homes for the aged.

Solly Kessler, a lawyer and former chairman of the constitutional committee of the South African Jewish Board of Deputies, the country’s main Jewish organizational body, was appointed by the board in 1999 to make recommendations to a parliamentary committee discussing drafts of the new law.

“Our welfare and educational institutions are facing an unprecedented challenge,” Kessler said in an interview with JTA. “If not dealt with wisely, their future as Jewish institutions could be seriously jeopardized, and our community could be gravely prejudiced.”

“As various government departments direct their attention to more and more of our institutions that receive a subsidy, or that are subject to government regulation, the institutions are being asked to open their doors to non-Jews or to justify their exclusion of non-Jews.”

She said there is little doubt that the Jewish dimension of communal institutions will be threatened if they are opened to non-Jews.

“There is the distinct danger that, in time, they will cease to be Jewish at all and that they will cease to draw the specific Jewish human and financial support that they now command,” she said. “Concomitantly, it is likely that the Jewish character of our community will be seriously damaged, probably irreparably.”

Kessler said she believes a solid legal argument can be made for maintaining a policy of Jewish exclusivity in community institutions based on freedom of religion and association, and rights conferred by the constitution on cultural and religious communities.

“The Equality Act does not prohibit a Jewish institution from only admitting Jews, but the onus is on the institution to show that the discrimination is not ‘unfair discrimination,’ ” she said.

Kessler says the policy of limiting community institutions to Jews is not unfair discrimination. The question is whether the courts will buy that argument if they ever are asked to deliberate on the matter.

Ralph Zulman, a judge on South Africa’s High Court, was commissioned by the government in 2002 to help set up the Equality Courts and train the magistrates who will preside in them.

Addressing a gathering of Jewish leaders in Johannesburg recently, Zulman, who is Jewish, analyzed several arguments that institutions might make to justify restricting admission — and their likelihood of success in court.

One of the strongest arguments is exclusivity on religious grounds, he said.

“To say there are differences does not mean there is discrimination,” he said. “If you can justify the differences in religious terms, I believe you will succeed in persuading the authorities that there is not unfair discrimination.”

Thus, yeshivas and religious schools probably could justify admitting only Jews. However, schools that are traditionally Jewish but not primarily based on religion, such as the King David schools in Johannesburg, could have difficulty making that argument.

A second argument is that an institution is culturally Jewish and thereby needs protection.

A third is that an institution may have a “Jewish atmosphere and orientation,” and non-Jews would not fit in.

In Zulman’s view, these latter two arguments stand little chance of satisfying the authorities.

There is, however, a fourth argument that might succeed — that an institution’s resources are limited and it is entitled to provide for its own community members first.

Zulman warned that it would be “dangerous and foolhardy”for an institution to specify an exclusionary policy in its constitution. He also cautioned against tactics like raising admission fees to exclude certain South Africans, then granting exemptions or discounts to Jewish applicants.

He also warned against representing a school as religious if it is not.

“You won’t be able to bluff the authorities,” Zulman said. “If you don’t practice religion in a serious way, it’s not going to help.”

Kessler has called for the establishment of a commission in the community to formulate a unified policy for all Jewish institutions that might be affected by the new law. He believes that if the community speaks with one voice to the authorities, it will be more likely to succeed.

“All these community institutions should, as a matter of principle, give preference to Jews, and their right to do this should be legally defended if necessary on a unified basis as a community,” he said. “The problem is that some institutions have already taken fright at the new law and started doing their own thing. They have said, ‘Let’s open our doors to everyone,’ which will spell their end as Jewish institutions.”

“This unilateral action by individual organizations will make it hard afterwards for the Jewish community to deal with the issue in a unified way,” he said.

Kessler also suggested that, in formulating a response to the Equality Act, Jewish groups could cooperate with Muslim groups or other communities with similar concerns about their institutions’ identities.

So far, nobody has sought to force Jewish institutions to admit non-Jews.

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