Court-sanctioned Discrimination Committees

The decision of the High Court of Justice to reject several petitions against a law allowing one type of small rural community to screen applicants using an admissions committee is yet another expression of a worldview that prefers passivity to judicial activism, and whose leading practitioner is Supreme Court President Asher Grunis. This narrow 5-4 ruling by an expanded panel of justices is liable to have a chilling effect on the battle against various kinds of discrimination in Israel. Granted, the law’s drafters intended it to be used primarily to keep Arabs out of such intentional communities, which in Hebrew are called yishuvim kehilati’im, or community settlements. But the law will also affect other groups whose members are seen as threatening the rather homogenous social fabric of these communities.

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The admissions committee law, which was enacted in 2011, allows small communities in the Negev or the Galilee built on state lands to condition membership on the approval of a screening committee. Under the law, the committee may reject candidates deemed unsuitable to the “social life” or the “sociocultural fabric” of the community. In contrast to other discriminatory laws, which the state is responsible for carrying out, in this case the legislature placed the power to discriminate in the hands of ordinary citizens.

According to Grunis, it is too early to know how the law will be applied in practice, and therefore, the arguments raised in the petitions are “hypothetical and theoretical claims.” But Justice Salim Joubran, writing for the minority, wrote that the admissions committees are nothing but “a mechanism for enshrining and perpetuating a discriminatory situation.”

Admissions committees in community settlements rejected undesirable applicants, mainly Arabs, even before the law went into effect, and judging from a few recent incidents very little has changed. The protections that were added to the law are insufficient to ensure that vague admissions criteria will not be used to perpetrate unacceptable discrimination. But the deeper problem pertains to the very existence of such a screening mechanism.

In his ruling, Grunis noted that “At present, the court does not have a sufficient factual basis for a decision.” It must be hoped that future petitioners will return to the court in order to examine the validity of the law in practice, and that yishuvim kehilati’im will eschew discrimination in creating an appropriate composition in these communities.