Why we took the government to court over its crackdown on Palestine solidarity in school

<h4><em>In the wake of the current Israeli military aggression on Gaza and attacks on Al Aqsa, it is imperative that individuals and communities continue to show solidarity with the besieged Palestinian people who continue to courageously resist the occupation. </em></h4> <h4><em>Last year, schools and the government actively sought to repress pupils from acts of solidarity with the Palestinian struggle for freedom, which resulted in CAGE bringing a legal challenge against the policy in the High Court. In light of the Department Education now issuing new more nuanced guidance on how to teach the Israel-Palestine issue in schools and the <a href="https://www.cage.ngo/cage-briefing-understanding-ukraine-and-palestine-solidarity-in-uk-schools">recent encouragement of showing political solidarity with Ukrainians</a>, CAGE calls upon all people of justice, young and old, to show the Palestinians that they are not forgotten.</em></h4> <hr /> <h3>Background</h3> In May 2021, the Israeli military escalated its ethnic cleansing of Palestinians from Jerusalem and attacks on worshippers in Al Aqsa Mosque while simultaneously embarking on a bombing campaign of the Gaza Strip during which it killed 256 Palestinians including 66 children. In response to the aggression, children at schools and academies across the UK came out in their hundreds in organic shows of solidarity with the Palestinian people. They organised protests, flew Palestinian flags, and wore emblems and badges associated with the Palestinian freedom struggle. Rather than welcome such political awareness and encourage this display of human empathy, many schools imposed sanctions on pupils for their political expression. Penalties included confiscation of flags and badges, detention, suspension, exclusion, referral to Prevent and involvement of the police. Schools sought to justify the penalties by citing allegations of antisemitism, a failure to be balanced and the school uniform policy. CAGE supported nearly impacted 50 pupils and teachers and documented our findings in a report called ‘Repression of Palestine Solidarity in Schools’. The then-Education Secretary Gavin Williamson subsequently <a href="https://twitter.com/gavinwilliamson/status/1398374786871537664">wrote</a> to headteachers and school leaders across the country about what he described as an ‘increase in antisemitic incidents in some schools’ as a result of recent events. He specifically instructing them not to work with or use materials from organisations that publicly reject Israel’s 'right to exist’ equating the same with antisemitism.  Instead he referred schools to Zionist groups such as the Community Security Trust as external groups that could teach pupils about the Israel-Palestine issue in ‘a balanced way’. This letter effectively neutralised any further pupil acts of solidarity with Palestine and acted as a post-facto justification of the sanctioning of the pupils, dozens of whom <a href="https://www.cage.ngo/repression-of-palestine-solidarity-in-schools-report">complained</a> to CAGE about their mistreatment. Having taken legal advice, we felt a duty both to the young people who had approached us and to future generations of pupils to take legal action against the government for its repression of Palestinian solidarity in schools and academies. After the government failed to withdraw the instruction following our threat of legal action, we had no choice but to commence judicial review proceedings in the High Court in an attempt to coerce them to do so. &nbsp; <h3>Grounds of challenge</h3> The grounds of our challenge were threefold. Firstly, we argued that ‘Israel’s right to exist’ is a political claim, as opposed to a legal one. The concept of a ‘right to exist’ is one that is not recognised by international law and therefore Israel’s claim to have such a right is nothing more than a plea for acceptance of the legality and legitimacy of its creation and of its actions and policies today. As the claim is political and the subject of legitimate debate, both supporting and rejecting it amounts to a ‘partisan political view’. As such, it is not open to schools to promote either position as this would constitute political indoctrination in breach of section 406 of the Education Act 1996. Moreover, by denying pupils the opportunity to learn from organisations that reject Israel’s right to exist, schools would breach their duty to secure balanced treatment of political issues, contrary to section 407 of the same Act, particularly where proponents of that view are demonised as antisemitic. In support of its position, CAGE commissioned expert opinions by two eminent international lawyers and specialists on the subject of Israel/Palestine: Professor John Dugard, a former member of the UN International Law Commission, a former judge of the International Court of Justice and a former UN Special Rapporteur, and Professor Avi Shlaim, an Emeritus Fellow of St Antony’s College and former Professor of International Relations at the University of Oxford. Professor Dugard drew explicit comparisons with Rhodesia noting how it was denied recognition as a State because of its denial of self-determination to the indigenous population and argued that Israel would not be recognised as a State today for similar reasons. Professor Dugard also drew parallels with apartheid South Africa recalling how ‘the credentials of the South African government were not accepted and it was denied the right to participate in the work of the General Assembly’; it was in effect being told that it no longer had the right to exist as a State on account of its apartheid regime, an argument that is raised in respect of Israel today. While the government is entitled to its partisan political view on the issue, it is not entitled to impose it on schools nor promote it among pupils in schools, as it had attempted to do so. By insisting that schools support ‘Israel’s right to exist’, the government obfuscated the existence of legitimate debate about the issue, indicated to schools that its view was the only acceptable position on the subject, and demonised those with an opposing view as antisemitic, intolerant and hostile. Secondly, we argued that the instruction discriminated against Muslim pupils as it only sought to address the concerns of Jewish pupils facing antisemitism as a result of the Israel-Palestine conflict, without any attempt to address the concerns of Muslims pupils dealing with Islamophobia flowing from the exact same matter. Finally, we argued that prior to issuing the instructions, the government had failed to consult properly and fairly with organisations familiar with the issue. While the government is not under any duty to consult, if it does engage in any form of consultation, it has a duty to do so fairly and without bias. We obtained evidence from several leading Muslim and Palestinian organisations in the country confirming that they had not been consulted in advance of the instruction. We also contacted all the recommended organisations in the government’s instruction (Solutions Not Sides (SNS), Forum for Discussion on Israel and Palestine (FODIP), the Community Security Trust (CST) as well as the Board of Deputies of British Jews. Both SNS and FODIP confirmed that they had not been consulted. Neither the CST nor the Board of Deputies of British Jews responded to our correspondence. &nbsp; <h3>The Defense</h3> The government tried to have the challenge thrown out on the grounds that it had not been issued promptly. Its primary argument in defence of its instruction was to assert that the use of the phrase ‘Israel’s right to exist’ was intended to reflect a reference to the right of self-determination of the Jewish people by relying indirectly on an example from the IHRA working definition of antisemitism (that it is antisemitic to state that the existence of <b>a</b> State of Israel is a racist endeavour). However, this example classifies principled opposition to <b>any</b> conceivable Jewish State (on the ground that such a State would by definition be racist) as an example of antisemitism. Denying the legitimacy of <b>the</b> State of Israel (because if its contested history and/or current policies and laws) is not considered antisemitic by the IHRA working definition. We advised the court that this fundamental misunderstanding by the government illustrated exactly why it should not be dictating to schools which views on the subject matter are or are not acceptable. It conflated legitimate criticism of Israel which would only result in silencing opposing views. The government denied that the instructions was discriminatory stating that Jewish and Muslim pupils were not in a comparable position and that. it did not have to address Islamophobia at the same time as addressing antisemitism. Notably, it has not issued a similar specific instruction in relation to Islamophobia since then. Finally, it conceded that a discussion had taken place with a stakeholder but that this did not amount to a consultation, formal or informal, and as such it was not obliged to take other views before issuing the instruction. &nbsp; <h3>The new guidance</h3> In the midst of the litigation and just months before the challenge was heard by the High Court, the government issued new guidance to schools entitled <a href="https://www.gov.uk/government/publications/political-impartiality-in-schools/political-impartiality-in-schools">Political Impartiality in Schools</a> that was intended to assist schools in complying with their statutory duties: the new policy assists schools in identifying what is a ‘political’ issue, in understanding balance in teaching, and in identifying a distinction in principle between organisations which hold partisan political views and those which take ‘extreme political positions’. Of particular relevance is Scenario G in the Guidance which deals in a nuanced way with the choice of resources for teaching about political issues specifically in the context of the ‘Israel-Palestinian conflict’. Notably there is no mention of preventing schools from working with organisations that publicly reject Israel’s right to exist and this is not illustrated among the many examples of ‘extreme political positions’. We argued that the difference between the approach taken in the new guidance and the approach taken in the May 2021 letter was stark and indicative of why our claim was necessary. &nbsp; <h3>The decision</h3> Unfortunately, while accepting that the challenge had been brought in time, the High Court agreed with the government that it had not been issued promptly. In doing so, it rejected CAGE’s explanation that it was a small advocacy organisation with limited resources that needed to consult with lawyers and stakeholders before taking such action. It also ignored the fact that the government had taken almost three weeks to respond to our letter before action. Despite dismissing the challenge on this technicality, the High Court judge made further findings on the substantive challenge finding that the letter was intended to tackle antisemitism and that it was likely that antisemitic organisations would veil their antisemitism in the language of “publicly rejecting Israel’s right to exist”. As such, it was not arguable that the government had breached the Education Act by directing schools not to work with such organisations. The judge further found that it was not arguable that the instruction discriminated against Muslim pupils and that the government was entitled to have a discussion with a stakeholder without it necessarily becoming a consultation, that would necessitate it being carried out fairly. &nbsp; <h3><b>Why CAGE believes the challenge was successful</b></h3> While the High Court may have dismissed our claim on a technicality, we believe that it was the right thing to do to bring the challenge and that a number of benefits flowed from doing so. <ol> <li aria-level="1">Through the litigation, we secured expert opinions by two eminent scholars on international law about the issue of ‘Israel’s right to exist’, demonstrating that rejecting it, is a legitimate political position that should not be conflated with antisemitism. We hope that this will help to instill confidence in the community to assert this position without fear of being libeled as antisemitic. The expert opinions will be published by CAGE in due course.</li> <li aria-level="1">Six months after issuing the claim, the government issued new more nuanced guidance to schools on how to deal with political impartiality including with specific reference to Israel-Palestine. It distinguishes between external agencies that hold partisan political views, and those that “undermine fundamental British values” or take “extreme political positions”. The Guidance permits schools to work with the former but not the latter. The Guidance does not define “extreme political positions” but lists 8 examples of the same, none of which include rejecting Israel’s right to exist. It emphasizes that, when teaching about sensitive political issues, a distinction should be drawn between basic shared principles, such as tolerance and opposition to discrimination and prejudice on the one hand, and contested partisan political views on the other. We believe that this guidance was issued as a direct response to our challenge.</li> <li aria-level="1">Dozens of Muslim students sought our advice and assistance as a result of their mistreatment by their schools. We owed them a duty to challenge the government that sought to justify that mistreatment in the name of fighting antisemitism. In our view, the new guidance issued by the government vindicates each and every one of those pupils.</li> <li aria-level="1">Recent events in Gaza demonstrate that the issue remains a live one which school pupils should not be prohibited from engaging in. The challenge will enable them to continue to express solidarity with Palestinians in the form of flying flags, wearing emblems, fundraising and requesting assemblies to discuss the situation akin to how schools have been doing in relation to Ukraine this year. CAGE has published a <a href="https://www.cage.ngo/cage-briefing-understanding-ukraine-and-palestine-solidarity-in-uk-schools">report</a> on the strikingly contrasting ways schools have treated both issues which can also be utilised by pupils to show the double standards and preferential treatment if schools prevent them from showing solidarity with Palestine.</li> <li aria-level="1">The government conceded that it had formulated the letter having had a discussion with a stakeholder. We can only speculate but the evidence would point to that single stakeholder being either the Board of Deputies of British Jews or the CST, which further underlines the partisan position of the government in this regard.</li> <li aria-level="1">The challenge brought together a whole host of civic society organisations that work on Palestine and who supported the challenge by giving evidence in support of the claim. These included MEND, Al Haq, Friends of Al Aqsa, the Palestinian Return Centre, the British Palestinian Policy Council, the Palestinian Forum in Britain and Europal.</li> </ol> <em>CAGE thanks all of those who supported this challenge with their prayers and donations and for placing their trust in us. We also extend our thanks to our lawyers Fahad Ansari (Riverway Law), David Chirico (One Pump Court Chambers) and Daniel Grütters (One Pump Court Chambers) for their efforts. </em> <em>Image courtesy of Unsplash/<a href="https://unsplash.com/photos/kspo_vam-RA">Yousef Salhamoud </a></em>