The High Court of Justice on Wednesday narrowly upheld a law allowing small communities to screen potential new members via admissions committees.
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In a 5-4 decision, the justices said the petition filed against the law by several Fhuman rights organizations was premature, because “it isn’t yet clear how the law will be applied in practice.”
“The High Court has approved one of the most racist laws of the past several years,” charged Adalah – the Legal Center for Arab Minority Rights in Israel, which was one of the petitioners. “It was legislated by a majority of the Knesset with the declared intent, primarily, of keeping Arab citizens out of these communities.”
The law, which was passed in March 2011, allows small communities to set up admissions committees to screen potential new members based on criteria laid down in the community’s bylaws. Such committees have been standard practice in small communities for decades, but until this law was passed, they had no legal basis.
Several human rights organizations, including Adalah and the Association for Civil Rights in Israel, argued that the law would allow these communities to reject homosexuals, people with disabilities, Arabs or anyone else who differed from the community’s social norm. Since both Israeli and international law prohibit discriminating against someone just because he differs from the dominant social group, they said, that makes the law unconstitutional.
Though the law explicitly prohibits discrimination against members of other social groups, it permits the admissions committees to reject candidates on such vague grounds as “unsuitability to the community’s social life” or its “social-cultural fabric” or to “unique characteristics of the community as defined in its bylaws.” The law also allows the committees to send applicants to evaluation centers or graphologists and to demand a great deal of personal information from them.
Supreme Court President Asher Grunis, with Justices Miriam Naor, Elyakim Rubinstein, Esther Hayut and Hanan Melcer concurring, rejected the petition mainly because “it isn’t yet clear how the law will be applied in practice.”
“The court, with its limited resources, will not engage in investigating hypothetical and theoretical claims,” Grunis wrote.
Justices Edna Arbel, Salim Joubran and Yoram Danizger dissented, saying the court should rule two provisions of the law unconstitutional: the one allowing admissions committees to reject applicants who “aren’t suitable to the community’s social life,” and the one allowing it to reject candidates because of “unsuitability to the community’s social and cultural fabric.”
This, Danziger wrote, is a “vague legislative formula that opens the door wide for the entry of ulterior motives and for discrimination in practice.”
The last justice, Neal Hendel, objected to a different provision – the one giving members of a given community a majority of seats on that community’s admissions committee. Regarding the law’s other provisions, he agreed with the majority that the petition was premature. But this provision is liable to result in “unconscious discrimination” by the admissions committee, and should therefore be overturned, he wrote.
Attorney Suhad Bishara of Adalah, who drafted the petition on the organization’s behalf, said the ruling constituted a significant retreat from the principle the court laid down in the Kaadan case in 2000, in which it overturned a decision not to sell land in the Jewish community of Katzir to Iman and Adel Kaadan, an Arab couple from Baka al-Garbiyeh. The court reaffirmed this principle in 2011, when it accepted a petition by another Arab couple, Fatna and Ahmed Zabidat, against their rejection by the admissions committee in the Jewish community of Rakefet.
“This [ruling] reflects the continued deterioration in constitutional protections of the legal status of Israel’s Arab citizens,” Bishara said. “In the wake of this decision, hundreds of Israeli communities – 434 communities – will be legally run, with the approval of the High Court, on the basis of apartheid in housing.”