The Admissions Committees Ruling: A Lack of Ripeness or Refusal to Decide?

Published in: The Times of Israel

The Supreme Court's ruling on the Admissions Committees Law, which rejected the petition of several human rights organizations to overturn the law, is disappointing.

The Admissions Committees Law allows the practice of having admissions committees in small towns in the Negev and the Galilee. On the one hand, this law permits admissions committees to reject applicants based on vague criteria such as "incompatibility with the social-cultural fabric of the town." This, in effect, encourages the residents of the town to favor candidates like themselves and leaves minorities, immigrants, and people from lower socio-economic classes outside the gate. On the other hand, however, a "non-discrimination" clause was added to the law during the legislative process. This clause prohibits discrimination due to ethnicity, race, religion, and the like, and was contrary to the intended goal of excluding Arabs from small towns, which emerged clearly in discussions and interviews with some of the law's proponents.

The ruling is disappointing because the court missed an opportunity to send a clear message against the spate of anti-democratic legislation that characterized the 18th Knesset—legislation that set the stage for the shameful wave of hatred against Arab citizens of Israel during Operation Protective Edge. Instead, the court chose not to decide based on the "ripeness doctrine"; that is, it held that the case is not ready for litigation because it rests on future events that may not happen at all. According to the majority opinion, since the law is not discriminatory on the surface—on the contrary, it even contains an anti-discrimination clause—it is not clear how it will be implemented in practice; therefore, unless there are actual cases that prove that the law serves as a basis for discrimination, the law cannot be challenged, since it does not violate any constitutional right.

This argument is not convincing. This is because unlike cases in which legislation is truly innovative, and it is not yet clear how the new law will be implemented, admissions committees have been in existence for years, and sufficient cases and evidence of discrimination have been accumulated, despite the fact that a ban on discrimination existed even prior to the current law. This is a catch 22: Before the law was passed, a number of actual cases of discrimination were pending, but these cases were dismissed because it was argued that there was a need to wait until the petition against the new law was processed. Now that the new law is up for review, however, it is claimed that there are no concrete cases.

Furthermore, it is not easy to collect such cases, since the existence of admissions committees has a chilling effect that prevents people who can be seen as socially undesirable from applying for residency in the first place. Candidates who are rejected for admission, moreover, tend not to appeal the decision due to the shame that they have experienced or because they no longer want to live with people who wish to exclude them.

Even if we assume that the majority opinion is justified, and that we should wait until it is possible to substantiate a violation of the right to equality, the ruling completely  disregards two other rights that will most certainly be damaged by the law: the right to privacy and the right to dignity (in its purest sense). Even people who are not members of groups that are subject to discrimination experience humiliation and violation of privacy when they are required to reveal the details of their personal lives to their future neighbors, waive their right to medical confidentiality, submit to graphology evaluations, and participate in group dynamics exercises as part of their application process. If it is indeed possible to justify this serious violation of rights by invoking the "right" of the members of the community to live with other people who are like them, this argument must be proven in a manner that meets the requirements of the limitation clause of Basic Law: Human Dignity and Liberty (i.e., the law must befit the values of the State of Israel, be enacted for a proper purpose, and be proportional). The majority opinion did not raise this responsibility.

The court did not do what it should have done. However, despite the proclamations of several newspaper headlines, the court did not give the law "constitutional approval." It left a clear opening to strike down the law in the future. If despite the chilling effect on applications, there indeed are people who apply for acceptance to towns in the Galilee and the Negev in the future, and they are rejected by admissions committees because of the group that they belong to, there will be no choice but to strike down the legislation.

Dr. Amir Fuchs is a researcher at the Israel Democracy Institute.

 This article was originally published in Hebrew in Haaretz on September 22, 2014 and in English in The Times of Israel on September 30, 2014.