Case Number

HCJ 4805/07

Date Decided

7-27-2008

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitions, submitted following HCJ 10296/02 (hereinafter: the decision) and which concern the issue of the obligation to provide a “core studies program” in the secondary education recognized but unofficial institutions and in exempt secondary educational institutions, while properly implementing the findings of the decision handed down on the matter. This issue is related to the continual funding of educational institutions which did not prepare for implementing the core studies program and, if need be, to the establishment of an efficient supervisory mechanism for primary and secondary education. This ruling revolved around the operative aspects of the decision.

The High Court of Justice (in a decision by Justice A. Procaccia, joined by Justice Joubran and Vogelman) held that:

In the decision, the Court gave an absolute order, which applies to any educational institution, to terminate government funding to institutions that teach religious studies that do not meet the necessary requirements for recognition as “recognized institutions” which entitles them to funding. The decision was not implemented in time (by the 2007-2008 academic year) by the State and continues not to be implemented now, and the State even attempted to circumvent it.

Israeli law includes a statutory requirement to operate a core studies program in official educational institutions and in recognized unofficial institutions. Implementing a core studies program is directly and closely linked to government funding granted to the educational institution. Allocating state funds is subject to requirements of equality and reasonability and it must be guided by relevant considerations under clear and transparent standards. The principle of equality which applies on allocation of grants is a substantive equality which requires the equal treatment of those similarly situation and the differing treatment of those not similarly situated, according to the measure of their differences. Giving different treatment to individuals or to institutions that are not relevantly distinct constitutes prohibited discrimination and creates cause for judicial intervention. Differences in culture and religious belief do not in themselves justify discriminatory distinctions between groups. However, they may justified some increments in implementing a new arrangement which was designed to achieve equality. Still, such incremental change must be done in good faith and reasonability. The state continuing to fund recognized unofficial institutions that did not implement the core studies program does not pass the equality test and does not permit government funding to those institutions. Since the determinative date for applying the equality based policy in education in terms of implementing the core studies program and government funding to educational institutions has elapsed, it is proper to apply this equality based policy, at the latest, at the beginning of the 2009 school year. Thus, the public authority must effectively supervise the allocation of funds and the meeting of requirements according to its discretion.

In light of the above, the High Court of Justice considered issuing an absolute order in both Petitions, that would grant the desired relief in the Petitions in terms of application and implementation of the core studies program in all recognized unofficial secondary educational institutions in the ultra-orthodox community. However, after writing the decision it became clear that the Knesset had passed new legislation concerning these issues. Since this new legislative development was not examined here, no operative orders were granted.

Keywords

Education -- Discrimination

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