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Finally, Our Own Brown! (?)

Published online by Cambridge University Press:  29 June 2012

Yifat Bitton
Yifat Bitton
Affiliation:
Associate Professor, College of Management School of Law (COMAS) Israel. PhD, The Hebrew University of Jerusalem and LLM, Yale University Law School. Co-founder and chair of Tmura, The Israeli Anti Discrimination Legal Centre, which serves as the only civil society legal organisation in Israel focusing on the rights of Mizrahis as a discriminated community. This article is the combined articulation of both my academic interest and my practical experience in representing the Immanuel Mizrahi families, pro bono, in their plea for compensation for being discriminated against. I wish to thank Annette Lin for commenting on previous drafts. I also extend my deep gratitude to the journal's editorial board as well as the anonymous readers for their useful and intriguing critique. Email: bittony@colman.ac.il.
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Abstract

The decision in Noar Kahalacha, an anti-segregation in education case that was recently delivered by the Israeli High Court of Justice, has been ‘naturally’ celebrated as the ‘Israeli Brown’. But is it? This article points to the differences between the monumental US Supreme Court decision of Brown and the Israeli Brown-equivalent – Noar Kahalacha. It contends that the two cases bear differences that stem from the divergent patterns of discrimination they represent, and that they reflect these differences squarely. The discrimination patterns reflected by the cases differ by virtue of traits that are traditionally overlooked in antidiscrimination theoretical analysis. Comparing the two cases, therefore, allows us an opportunity to revisit the notion of discrimination and its antidote, antidiscrimination. Drawing on the dichotomous concepts of de jure/de facto discrimination and difference/sameness discrimination, the article shows how these dual theoretical notions are determinative in shaping the distinctiveness of each of these cases. While the African American victims in Brown were easily recognised as a distinctive group suffering from de jure discrimination, the Mizrahi victims in Noar Kahalacha – who suffer from de facto discrimination within a Jewish hegemonic society – lacked such clear recognition. Accordingly, the discrimination narrative that Noar Kahalacha provides is very incomplete and carries only limited potential for effective application in future struggles to eliminate discriminatory practices against Mizrahis in Israel. Brown, on the other hand, carries a converse trait. Though criticised, Brown, nevertheless, strongly signifies the recognition by White America of its overarching discriminatory practices, and implies a genuine dedication to break from it. This understanding further illuminates the limitations embedded in the possibility of ‘importing’ highly contextual antidiscrimination jurisprudence from abroad into our system's highly contextual reality of discrimination.

Keywords

antidiscrimination lawBrownMizrahisNoar Kahalachadifference
Type
Articles
Information
Israel Law Review , Volume 45 , Issue 2 , July 2012 , pp. 267 - 289
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2012

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References

1 The term ‘Mizrahis’ is used to refer to Jews of Arab/Muslim descent.

2 ‘Ashkenazi’ is a term describing Jews of European descent.

3 HCJ 1067/08 Noar Kahalacha v Ministry of Education (not published, judgment delivered on 6 August 2009) (‘Noar Kahalacha’), opinion of Justice Levi, para 4, in which he refers to the report of the special investigator, who identified the reasons for segregation as emanating from distinctive levels of compliance with Jewish religious rules by the girls and their families.

4 This seemingly melodramatic tone is based on evidence as was manifested in an affidavit provided by Yael and presented to the Supreme Court, regarding the mental harm she sustained as a result of being discriminated against.

5 Apart from common sense dictating such a comparison, the petitioners themselves have advanced such an analogy in their petition to the court, describing the situation in the Beit Ya'acov school as an ‘apartheid’. See s 3 of the petition, available at http://www.nevo.co.il.ezproxy.colman.ac.il/PsikaSearchResults.aspx?MenuId=10 (restricted access).

6 347 US 483 (1954).

7 Most of the declarations were made in the media, and are therefore hard to locate now. However, the Court itself in Noar Kahalacha (n 3) made several references to Brown throughout its deliberation and decisions. See, for example, Justice Meltzer's reference in para 4 to his decision and the Justices' remark in HCJ 1067/08 Noar Kahalacha v Ministry of Education (not published, judgment delivered on 15 June 2010) on the parents' obligation to comply with the Court order as a means to avoid measures similar to those taken against some white parents in the Brown case.

8 It should be stated, in the outset, that using Brown as a monument of success and a yardstick for the erosion of discrimination is questionable in and of itself: Whitman, Mark, Brown v Board of Education: A Documentary History (15th anniversary edn, Markus Wiener 2004) 310–34Google Scholar. However, within the American as well as international antidiscrimination legal discourse, Brown is identified as the cornerstone for abolishing segregation and voiding its harmful underlying premise of ‘separate but equal’ doctrine. In this respect, regardless of its limited effect, Brown substantiated the legal field as yet another venue for vindicating the right to equality of African Americans. With these reservations taken into account, I still share the view of it as praiseworthy and aspirational.

9 Only in one of the concurring opinions – by Justice Meltzer – can one identify rejection of this ideology, allowing a more broadly conceived antidiscrimination policy into the ruling. This relatively non-dominant portion of the ruling will be discussed in detail below.

10 Since the rift is primarily intra-Jewish, it is important to posit it within the Jewish numerical context. This context excludes the population identified in Israeli sociology as ‘immigrants’ (mainly from the former Soviet Union and Ethiopia), which is not taken into consideration in the statistics brought into this article. All statistics therefore should be read in light of this equal share they should have had in representational terms. In the statistics presented below, the family patriarch's descent was the predicate for determining a person's origin.

11 In light of the numerical proportions of Israeli society mentioned above, the choice of ‘minority’ to describe Mizrahis signifies political powerlessness rather than numerical disadvantage. The dominance of a hegemonic group in society is derived from its possession of power to dictate to others the basic rules upon which that society is founded and through which it operates. Being a ‘minority’, therefore, signifies a process of disempowerment. This term is very commonly used in Critical Race Theory as a means to signify that power is drawn on politics not numbers, as best proved, for example, by the South African apartheid political system.

12 A study led by Dr Nissim Mizrachi of Tel Aviv University, which examined three randomly chosen ‘integrative schools’. The study's conclusion can serve to demonstrate the probable situation of segregated schools: Mizrachi, Nissim, Goodman, Yehuda C and Feniger, Yariv, ‘“I Don't Want to See It”: Decoupling Ethnicity and Class from Social Structure in Jewish Israeli High Schools’ (2009) 32 Ethnic and Racial Studies 1203 (in Hebrew)CrossRefGoogle Scholar.

13 Such as in development towns, which are underdeveloped cities built in the wilderness of Israeli periphery: Erez Tzfadia and Oren Yiftachel, ‘State, Space, and Capital: Immigrants in Israel and Social Spacial Stratification‘ in Filk, Dani and Ram, Uri (eds), The Power of Property: Israeli Society in the Global Age (Hakibbutz Hameuhad and The Van Leer Jerusalem Institute 2004) 197–221Google Scholar (in Hebrew).

14 Blechman, Israel, ‘The Ethnic Composition of Research Universities in Israel’ (2008) 33 Theory and Criticism 191 (in Hebrew)Google Scholar.

15 Statistic taken from Iris Zarini, ‘Mizrahi Professors: How the Habitus Redirects Minorities in Israeli Academia’, MA thesis, still under supervision by Dr Henriette Dahan Kalev and Professor Uri Ram, Ben Gurion University, 2007. I extracted statistics regarding the following universities: Hebrew University, Tel Aviv University, Haifa University, Bar Ilan University, Ben Gurion University and the Technion.

16 Interestingly, the law faculty is considered to be the most prestigious of academic schools. This fact is reflected in the ethnic breakdown of the law faculty, where there is the lowest percentage of Mizrahi academics. The faculty of social sciences, on the contrary, which is considered by most as the least prestigious, has the highest percentage of Mizrahis in its academic staff: see Gad Yair and Didi Shamas, ‘Ethnic Bias or Social Neutrality at the Universities: Consequences for Affirmative Action for Students from Asia and North Africa’ in Maor, Anat (ed), Affirmative Action and Equal Representation in Israel (Ramot 2004) 495, 502–03Google Scholar (in Hebrew).

17 This data is drawn from my own research. I examined the staff at twelve of the law faculties in Israel. I excluded Sapir College, whose staff seemed to be in its formative stages, and therefore had no accurate portrayal. I also excluded six staff members whose ethnic origins were unclear. However, even if all six are of Mizrahi origin, that only raises the percentage of Mizrahis to 7.5%. The percentage of Arab staff is even more disturbing – a mere 2.5%, with only one woman. Because of a lack of cooperation on the part of the staff, I could not examine the ethnic composition of all the different faculties. This lack of cooperation is indicative of an overall social phenomenon, characterising studies in this field. Similar difficulties occurred in the study conducted by Yair and Shamas, ibid 497, and the study conducted by Mizrachi (n 12), as these researchers have reported.

18 Cohen, Yinon, ‘Socio-economic Gaps between Mizrahim and Ashkenazim, 1975–1995’ (1998) Israeli Sociology 115 (in Hebrew)Google Scholar. For a structural analysis of the Israeli job market based on ethnicity status, see Shlomo Swirski and Deborah Bernstein, ‘Who Worked Where, for Whom and for What: Economic Development in Israel and the Emergence of an Ethnic Division of Labor’ in Ram, Uri (ed), Israeli Society: Critical Perspectives (Breirot 1993) 120Google Scholar (in Hebrew).

19 For a Marxist analysis of the status of Mizrahis, see Swirski, Shlomo, Not Weak, Weakened – Orientals and Ashkenazim in Israel: Ethnic Division of Labor (Notebooks for Research and Critique Publishing 1981)Google Scholar.

20 The majority of the data given in this article is taken from the website of the Adva Center, an institute for the research of Israeli society, investigating inequality and social injustices in Israel. The ethnicity-based occupational gap relating to men in 2007 is to be found at Adva Center, ‘Occupation, by Ethnic Group and Gender, 2007’, available at http://adva.org/Uploaded/Occupation_continent_select,%202006_2.pdf. As of 2007, in the more service oriented positions, such as sales and secretarial jobs, the division is 24% Ashkenazis against 31% Mizrahis: See Adva Center, ibid. A more concise portrayal of the social reality in Israel can be found in Gerby, Iris and Levy, Gal (under the guidance of Ruth Gabizon), The Socio-Economic Gap in Israel (Israeli Democracy Institute 2000)Google Scholar (in Hebrew).

21 Adva Center, ‘Income by Ethnic Group, 2007’, December 2008, available at http://adva.org/Uploaded/Income%20by%20type%202007_1.pdf.

22 Gerby and Levy (n 20) 48–52.

23 1.5% of the Ashkenazi population are unemployed, whereas the unemployment rate for the Mizrahi population is 7.5%; meanwhile, 10% of Palestinians are unemployed: Adva Center (n 20).

24 Levy, Yagil, ‘Militarizing Inequality: A Conceptual Framework’ (1998) 27 Theory and Society 890–97 (in Hebrew)CrossRefGoogle Scholar. Levy indicates that the army is a mechanism of the establishment, which ‘reproduces’ the inequality in Israeli society. For a more extensive description of the relationship between the army and Mizrahis: Levy, Yagil, From the ‘People's Army’ to ‘Army of the Peripheries’ (Carmel 2007)Google Scholar (in Hebrew).

25 The Sister Institute, ‘Data Report – Budget Allocations for Cultural Institutions in Israel, 2008’, prepared by the Coalition of Civil Society Organizations for Equality in Budget Allocations, 23 November 2010, available at http://www.achoti.org.il/?p=52.

26 For Mizrahi representation in satire and pop culture, see Saada-Ophir, Galit, ‘Borderland Pop: Arab Jewish Musicians and the Politics of Performance’ (2006) 21 Cultural Anthropology 205CrossRefGoogle Scholar. For the stereotypical representation of Mizrahis in Israeli cinema, see Shohat, Ella, Israeli Cinema: East/West and the Politics of Representation (Glickman, Anat tr, Breirot 1991)Google Scholar (in Hebrew), and Dorit Dayan, ‘Sephardi Jews in Israeli Advertising Commercials, 1957–2000’, MA thesis, Bar Ilan University, 2003. For the distortion of the Mizrahi figures in pop culture, see Yifat Ben Hay-Segev, ‘Mizrahim in Israel Talk about Prime-Time Television Shows: An Audience Reception Study’, PhD thesis, Bar Ilan University, 2007. For the distortion of the Mizrahi figure in literature, see Mishani, Dror, The Ethnic Unconscious: The Emergence of ‘Mizrahiut’ in the Hebrew Literature of the Eighties (Am Oved 2006)Google Scholar. Mishani analyses the Mizrahi stereotypes presented in the Israeli literary masterpieces: Black Box by Amos Oz, Heart Murmer by Yehoshua Kenaz, and Five Seasons by AB Yehoshua; Hanan Hever, ‘Color and Race in Israeli Fiction’ in Shenhav, Yehouda and Yonah, Yossi (eds), Racism in Israel (Hakibutz Hameuhad and Van Leer Jerusalem Institute 2008) 119Google Scholar (in Hebrew).

27 Erez Tzfadia, ‘Immigrants in Peripheral Towns in the Israeli Settler Society: Mizrahim in Development Towns Face Russian Migration’, PhD thesis, Ben Gurion University, 2002 (in Hebrew). The thesis examines Israel's immigration and settlement policies for Mizrahi immigrants to Israel as a basis for their inferior status, distancing them from cultural, political and economic power sources; Kemp, Adriana, ‘Borders as Yanos: Space and National Identity in Israel’ (2000) 16 Theory and Criticism 13, 21–23 (in Hebrew)Google Scholar; Nuriely, Benny, ‘Strangers in a National Space: The Arab Jews in the Lod Ghetto, 1950–1959’ (2005) 26 Theory and Criticism 13 (in Hebrew)Google Scholar.

28 For a systematic and historical analysis of the discrimination of Mizrahis in housing and property policies, see Harbon, Claris, ‘Affirmative Localization: The Story of Women Repairing Historical Injustice’ in Barak-Erez, Daphne and others (eds), Studies in Law, Gender and Feminism (Nevo 2007) 413Google Scholar (in Hebrew). For a more concise analysis, See Gerby and Levy (n 20).

29 See the study results, as published on the Ministry of Justice's website, July 2010, available at http://www.justice.gov.il/NR/rdonlyres/3D8B97D5-10E8-4477-9B99-4B50C79794C3/21486/ahlusia.pdf.

30 Although the situation report seems to be more ‘consequential’ and less ‘normative’, one can see that, despite the widespread belief that the racism and discrimination of the 1950s are no longer as prominent, it is not uncommon that key Israeli public figures speak in a racist manner towards Mizrahis. For example, Haim Hefer, a well known poet, noted the ‘lack of culture’ in the Moroccan ethnic group, and Natan Zach, yet another respected poet, in an interview on a TV programme recently described Mizrahis as ‘cavemen’ who appreciate violence.

31 Levy described the Mizrahis' progress in Israel as limited: ‘As privileged and subordinated groups alike attain upward mobility, their positions might be changed, but not the power relations between them as long as that mobility occurs within the previously constructed confines and point of departure of each group. Here is the genesis of the syndrome in which subordinated groups find themselves “going up a downward escalator”’: Levy (n 24) 898.

32 For an increase in the gap in education, which is one of the more telling fields as far as future inequality is ensued, see the study of Dahan, Momi and others: ‘Have the Gaps in Education Narrowed?’ (2002) 49(1) Economics Quarterly 159 (in Hebrew)Google Scholar.

33 Kimmerling, Baruch, The End of Ashkenazi Hegemony (Keter 2001) 12Google Scholar (in Hebrew).

34 This unique social phenomenon and its origins are introduced below, in the text accompanying nn 75–80.

35 Canady, John E Jr, ‘Overcoming Original Sin: The Redemption of the Desegregated School System’ (1990) 27 Houston Law Review 557, 589Google Scholar; Weiss, Joelle S, ‘Controlling HIV-Positive Women's Procreative Destiny: A Critical Equal Protection Analysis’ (1992) 2 Seton Hall Constitutional Law Journal 643, 687–88Google ScholarPubMed.

36 For a challenge to this distinction, in order to demonstrate a de jure discrimination that allows for de jure relief, see Rangel, Jorge C and Alcala, Carlos M, ‘Project Report: De Jure Segregation of Chicanos in Texas Schools’ (1972) 7 Harvard Civil Rights-Civil Liberties Law Review 307Google Scholar (challenging the denial of the de jure discriminated against status for Chicanos in Texas).

37 The most paradigmatic example that springs to mind is Germany before and after the Second World War. In this article, however, this characteristic will be presented in the Israeli as well as the American legal systems, as reflected through their unique peculiarities.

38 This notion has been previously advanced by me in detail in Yifat Bitton, ‘The Limits of Equality and the Virtues of Discrimination’ [2006] Michigan State Law Review 593.

39 This requirement, although rarely discussed, is crucial in pleading a constitutional violation: ‘the first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied’: Castaneda v Partida 430 US 482 (1977) 494.

40 For an in-depth analysis of these effects, see Bitton (n 38) 605–26.

41 The unnaturalness, instability and inaccuracy of the legal construction of race can be demonstrated in one example of the American construction of the Blacks. This legal entity was defined differently from one state to the other. For the myriad definitions in the different states, see Murray, Pauli, States' Laws on Race and Color and Appendices (2nd edn, University of Georgia Press 1997)Google Scholar.

42 Lopez, Ian F Haney, ‘The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice’ (1994) 29 Harvard Civil Rights-Civil Liberties Law Review 1, 29Google Scholar; further references to classic writing on the issue can be found at Liddell, Gloria J, Liddell, Pearson Jr and Shaffer, Donald, ‘Is Obama Black? The Pseudo-Legal Definition of the Black Race: A Proposal for Regulatory Clarification Generated from a Historical Socio-Political Perspective’ (2010) 12 Scholar 213, 234–38Google Scholar.

43 The danger of reiterating racial perceptions through essentialism lurks those fighting it. See Gilroy, Paul, Against Race: Imagining Political Culture Beyond the Color Line (Harvard University Press 2000) 12Google Scholar. Critical awareness of this danger is therefore imperative, and requires strategic planning. Such planning is offered by Gayatri Chakravorty Spivak, ‘Subaltern Studies: Deconstructing Historiograph’, in Spivak, Gayatri Chakravorty (ed), In Other Worlds: Essays in Cultural Politics (Routledge 1988) 197, 205Google Scholar: ‘I would read it [the Subaltern Studies Group's text], then, as a strategic use of positivist essentialism in a scrupulously visible political interest … This would allow them to use the critical force of anti-humanism … even as they share its constitutive paradox: that the essentializing moment, the object of their criticism, is irreducible.’

44 In typifying ‘primary legal text’ I exclude any non-regulatory official action and include federal and state constitutional provisions, state primary legislation and local specific regulations.

45 Flax, Jane, ‘Beyond Equality: Gender, Justice and Difference’ in Bock, Gisela and James, Susan (eds), Beyond Equality and Difference: Citizenship, Feminist Politics and Female Subjectivity (Routledge 1992) 193Google Scholar.

46 American Heritage Dictionary of the English Language (4th edn 2006) 517Google Scholar: ‘the ability or power to see or make fine distinctions’; Merriam-Webster's Collegiate Dictionary (11th edn 2005) 358Google Scholar: ‘the quality or power of finely distinguishing’; Random House Webster's Unabridged Dictionary (2nd edn 2001) 564Google Scholar: ‘the power of making fine distinctions’. In his oft-cited, seminal article Owen Fiss used the term ‘antidiscrimination principle’ to refer to a principle against distinction making: see Fiss, Owen, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy & Public Affairs 107, 157–58Google Scholar. The flipside of this notion of discrimination lies in Western law's view of equality as stemming from Aristotle's notions of sameness and difference, according to which equality is guaranteed only to those who are ‘similarly situated’, meaning alike.

47 This notion is compatible with Foucault's perception of discrimination as an instrument for proactively establishing identities and differences: see Horrocks, Chris and Jevtic, Zoran, Introducing Foucault (Icon Books 1999) 64Google Scholar.

48 Bloom, Lackland H Jr, ‘Hopwood, Bakke and the Future of the Diversity Justification’ (1998) 29 Texas Tech Law Review 1, 5–7Google Scholar.

49 American Heritage Dictionary of the English Language (n 46) 517, 3184; Random House Webster's Unabridged Dictionary (n 46) 564, 1525.

50 This substantial account of discrimination is most notably attributed to Owen Fiss' work (n 46). However, even the broadest notions of ‘antidiscrimination as antisubordination’ still acknowledge that subordination pertains to ‘different’ and ‘identifiable’ groups. Both these notions are briefly and effectively reviewed in Balkin, Jack M and Siegel, Reva B, ‘The American Civil Rights Tradition: Anticlassification or Antisubordination?’ (2003) 58 University of Miami Law Review 9Google Scholar.

51 For more information about the Jim Crow legal system of segregation, see Davis, F James, Who is Black? One Nation's Definition (Pennsylvania State University Press 1991) 51–70Google Scholar. For more on the constitutionality of slavery, see Geoffrey Stone, R and others, Constitutional Law (4th edn, Aspen 2001) 422–31Google Scholar.

52 To be sure, I do not intend to state that there was no formal regulatory de jure discrimination against Mexican Americans whatsoever. However, this form of discrimination was sporadic and rare. See, for example, a Californian regulation known as the ‘Greaser Act’ from 1855, in which vagrancy was banned on ‘all persons who are commonly known as “Greasers” or the issue of Spanish … blood’: 113 California Statute 175 (1855), excerpted in Haney López (n 42) 29.

53 For a brief history of Mexican American encounters with the law, see Valencia, Reynaldo Anaya and others, Mexican Americans and the Law: ¡El Pueblo Unido Jamas Sera Vencido! (University of Arizona Press 2004) 4–10Google Scholar.

54 Bitton (n 38) 603–35. For the devastating consequences of the courts' reluctance to perceive Mexican Americans as a distinctive ‘race’, see López, Ian F Haney, ‘Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory’ (1997) 85 California Law Review 1143, 1158CrossRefGoogle Scholar.

55 Bitton, ibid. The stage of commitment to the ‘antidiscrimination principle’ began gradually after the Civil War and during the Reconstruction, but is much more evident, coherent and holistic since the mid twentieth century: Brest, Paul, ‘The Supreme Court, 1975 Term – Foreword: In Defense of the Antidiscrimination Principle’ (1976) 90 Harvard Law Review 1CrossRefGoogle Scholar. Kimberle Crenshaw marks the abolition of the Jim Crow legal system as the crucial point of transition into the ‘formal equality’ era: Crenshaw, Kimberle Williams, ‘Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law’ (1988) 101 Harvard Law Review 1331, 1377CrossRefGoogle Scholar. The effect of this type of clear recognition of a category of race is still relevant today for laws applying to such a category in a remedial manner: see Hoffman, Sharona, ‘Is There a Place for “Race” as a Legal Concept?’ (2004) 36 Arizona State Law Journal 1093, 1103–07Google Scholar.

56 The shift to colourblindness was a counter reaction to considering race consciousness the main component of white supremacy ideology: see Peller, Garry, ‘Race Consciousness’ [1990] Duke Law Journal 758, 759–61CrossRefGoogle Scholar.

57 See, for example, Kimberle Crenshaw's concern over what she identifies as ‘the loss of collectivity’ that followed the erosion of formal discrimination: Crenshaw (n 55) 1383.

58 Kimberle Crenshaw marks the abolition of the Jim Crow legal system as the crucial point of transition into the ‘formal equality’ era: ibid 1377.

59 Palestinians in this article refer to the group of Israel/Palestine-born population, living within the boundaries of the State of Israel, and holding Israeli citizenship.

60 Israel forbids the passing of Jewish ownership of lands (Israeli Lands Law, 1960 (Israel), s 2a), and states explicitly that the spouses of Israel's Arab citizens do not acquire Israeli citizenship by the act of marriage (Citizenship and Entrance to Israel Law (Temporary Order) 2003 (Israel), s 2). At the same time, Israel's constitutional legacy ensures equality to all its citizens, be they Arabs or Jews, by declaring itself to be a democratic constitution-based state (Basic Law: The Human Dignity and Liberty (Israel), s 1a). Israeli Supreme Court rulings, as well as specific legislation, provide unique protection from discrimination to the Arab Palestinian citizens of Israel, and even apply affirmative action rules in their favour. See HCJ 6924/98 The Association for Human Rights in Israel v Israeli Government and Others 2001 PD 55(5) 15 – imposing affirmative action in favour of Arab Israelis on all governmental and quasi-governmental entities; HCJ 1113/99 Adalah – Legal Organization for the Rights of the Israeli Arab Minority in Israel v Minister of Religious Affairs and Others 2000 PD 54(2) 164 – ordering the Ministry of Religious Affairs to reallocate its budget more equally between Jewish and Arab Israelis. Arab Palestinian citizens of Israel are, therefore, trapped in a unique paradoxical position, where on the one hand they suffer from being the de jure discriminated against group, while on the other hand they enjoy the benefits of being subjected to antidiscrimination and affirmative action laws.

61 In a previous article, I have set a discrimination typology that can shed some light on the process shaping this phenomenon: see Bitton, Yifat, ‘Wishing for Discrimination? A Comparative Gaze on Categorization, Racism and the Law’ (2008) 2 Sortuz: Onati Journal of Emergent Socio Legal Studies 39Google Scholar.

62 Lahav, Pnina, ‘Forum: Assessing the Field. New Departures in Israeli Legal History, Part Three – A “Jewish State … to be Known as the State of Israel”: Notes on Israeli Legal Historiography’ (2001) 19 Law & History Review 387, 414CrossRefGoogle Scholar.

63 Williams, Patricia J, The Alchemy of Race and Rights: Diary of a Law Professor (Harvard University Press 1991) 88–89Google Scholar.

64 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980)Google Scholar. I refrain from using this analysis to justify court intervention, as Ely does, and rather borrow the idea of the alienating power of discriminating laws.

65 Here, this article adopts Habermasian terms: Habermas, Jurgen, ‘Struggles for Recognition in the Democratic Constitutional State’ in Gutmann, Amy (ed), Multiculturalism: Examining the Politics of Recognition (Princeton University Press 1994) 121–22Google Scholar.

66 Conceptualising ‘difference’ as ‘classification’ was first introduced in the seminal article by Owen Fiss (n 46).

67 HCJ 528/88 Avitan v Israeli Land Administration 1989 PD 43(4) 297, 300, opinion of Justice Or, para 4; HCJ 153/87 Shakdiel v Minister of Religious Affairs and Others 1988 PD 42(2) 221; HCJ 4541/94 Miller v Minister of Security 1995 PD 49(4) 94; HCJ 678/88 Kfar Vradim and Others v Minister of Treasury and Others 1989 PD 43(2) 501, opinion of Justice Or, para 8; HCJ 1703/92 CAL Airlines v Israel Prime Minister and Others 1998 PD 52(4) 193, opinion of Chief Justice Barak, para 15 (discrimination is different treatment of equals and equal treatment of different).

68 Law of Return, 1950 (Israel). This law is also known as the Law of ‘Shevut’.

69 Citizenship Law, 1952 (Israel), s 2. In addition, Israel's Declaration of Independence declares Israel to be the home of all Jews: ‘In the state of Israel the Jewish people have raised’.

70 Yonah, Yossi, ‘Israel's Immigration Policies: The Twofold Face of the “Demographic Threat”’, (2004) 10 Social Identities 195CrossRefGoogle Scholar.

71 Basically, the Israeli land regime is structured according to an idiosyncratic historic national setting. During the 1960s, the legal system facilitated ample mechanisms through which the new Israeli state has rapidly gained control over lands within its territorial boundaries. The Jewish Agency and the Israel National Foundation were established as institutions designed to facilitate the ethnically centred objective of Jewish land territorial control. Both functioned as a legal and practical means for collective, rapid and systematic acquisition of land and for creating centralised control over it. For a critical analysis of the legal process that constituted Israel as an ethnocracy rather than a democracy, see Alexander (Sandy) Kedar, , ‘The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder: 1948–1967’ (2001) 33 New York University Journal of International Law & Policy 923, 936–49Google Scholar. For the legislative history of the Jewish land ownership principle, see Kretzmer, David, The Legal Status of the Arabs in Israel (Westview Press 1990) 49–76Google Scholar.

72 Studies in identity perception reveal an interesting dissonance through which Mizrahis identify more with being a part of the Jewish people than with being Israeli citizens, whereas Ashkenazis identify themselves primarily as Israeli citizens: Michael Schulz, ‘Israel between Conflict and Accommodation: The Transformation of Collective Identities: A Study of a Multi-Melting Pot Process’, dissertation thesis, Goteburg University, 1996, 253–56. One shocking datum indicates that Israeli Arabs are more likely to identify as Israelis than Mizrahim.

73 Shenhav, Yehouda, The Arab Jews: A Postcolonial Reading of Nationalism, Religion and Ethnicity (Stanford University Press 2006) 17Google Scholar.

74 The notion of Orientalism was ‘translated’ into the Israeli Jewish context primarily in Ella Shohat's work: see Shohat, Ella, ‘The “Postcolonial” in Translation: Reading Said in Hebrew’ (2004) 33 Journal of Palestine Studies 55CrossRefGoogle Scholar.

75 Shenhav (n 73).

76 ibid 12–16.

77 This perception is usually accompanied by some sense of nostalgia, acknowledging the existence of Mizrahis as a category that is relevant to the past (at times even shameful) of Israeli history, namely the years of the significant immigration to Israel, mainly through the 1950s.

78 See Shenhav's references (n 73) 11–12. Shenhav, however, does not present the first perception of non-existence I have introduced. This is, in my opinion, missing the most simple and casual mode of denial practised by everyday interactions I have with Israeli people, Ashkenazis and Mizrahis alike.

79 The richer and more radical, multifaceted category of Arab Jews renders it too problematic to work with within the legal sphere, which has not acknowledged even the popular term of Mizrahis. I, therefore, advocate keeping with the term ‘Mizrahi’ here, for practical legal reasons.

80 I adhere to antidiscrimination laws as the best available legal tool to combat discrimination regardless of the inherent limitations of the law as a means of achieving social, and more particularly, racial justice.

81 Bitton, Yifat, ‘Mizrahis and the Law: Absence as Existence’ (2011) 41 Mishpatim 455, 474–85Google Scholar.

82 Noar Kahalacha (n 3), opinion of Justice Levi, para 2, and opinion of Justice Arbel.

83 The Ashkenazi–Sephardic divide is meant to distinguish two geographically distinctive branches of the ancient Jewish world, consisting of mainly the European Jewish community, and the community of Sephardic Jews residing on the Iberian Peninsula. The current sociological definition, however, considers Mizrahis as Jews of Arab and Muslim descent alone.

84 One such legally recognised difference used to be the now abolished custom of nominating two Chief National Rabbinical offices in Israel, one for each religious denomination.

85 On the day on which the decision was delivered, 6 August 2009, Dr Aviad Hacohen, who represented the petitioners in the Supreme Court proceedings, was ridiculing this artificial justification in an interview on a popular radio show – Nissim Mishal on the Morning – where he challenged: ‘Does this religious divide ban girls from talking with one another? From studying the basic principles of a language in English classes or exercising together in Gymnastic classes?’

86 Noar Kahalacha (n 3), opinion of Justice Meltzer, para 5.

87 Brown (n 6) 487.

88 Petitioners in Brown were themselves residents of different states in the US: ‘These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware’, ibid 486.

89 407 US 163 (1972) 164.

90 403 US 217 (1971).

91 The richness of this narrative was not present in the official decision, but it was exposed to the Court. For a discussion of broad areas of the contents of the brief, see Whitman (n 8) 310–34.

92 ‘To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone’: Brown (n 6) 494.

93 The Court employs generalised language that gathers the different petitioners, stating that ‘a common legal question justifies their consideration together in this consolidated opinion’: ibid 486.

94 The court's reasoning did not even refer to the Beit Ya'acov school chain more generally, for that matter, although this school chain has a history of discrimination practices against ‘Sephardic’ students.

95 Case law following the enactment of the Forbidding Discrimination in Products, in Services and in Admittance to Entertainment Clubs and to Public Places Law, 2000 (Israel). For a general review of this law, see Illia, Moshe Cohen, ‘The Liberty and the Equality in Light of the Law Forbidding Discrimination in Products and Services’ (2002) 3 Aley Mishpat 15 (in Hebrew)Google Scholar.

96 Recent research I have conducted indicates that in only one out of 90 cases concerning night club discrimination incidents the court referred to Mizrahis as a group and stated that it suffered from racism at the hands of Ashkenazis: Bitton (n 81) 511.

97 Bell, Derrick, Race, Racism and American Law (6th edn, Aspen 2008) 551Google Scholar.

98 It is obviously very hard to trace this unrecognised impact, since the courts discussing segregation cases simply overlooked the identity of the African American appellants. Their viability as a recognised group was unquestioned and was a non-issue: see Griffin v County School Board 377 US 218 (1964) (the petitioners are laconically described as ‘a group of Negro school children’); Wright v Council of Emporia 407 US 451 (1972) (the appellants are simply described as ‘Negro children’); Norwood v Harrison 413 US 455 (1973) (the appellants are described as ‘schoolchildren's parents’; later in the case, the court incidentally discusses the issue of school segregation as relevant to ‘white’ and ‘Negro’ students: ibid 456); Cooper and Others, Members of the Board of Directors of the Little Rock, Arkansas, Independent School District and Others v Aaron and Others 358 US 1 (1958) (again, the court only declared incidentally that the battle around the implementation of Brown involved nine ‘Negro students’: ibid 9).

99 It is true that the aspirations and the hopes that were forged in Brown were not fulfilled, yet Brown taught that employing social tactics on top of the legal battle is essential for initiating deeper changes in racial power relations: see Bell, Derrick, Silent Covenants: Brown v Board of Education and the Unfulfilled Hope for Racial Reform (Oxford University Press 2004)Google Scholar.

100 Ashkenazi parents simply refrained from sending their daughters to school, to a point where Ministry of Education officers filed a criminal complaint against them for disobeying their parental legal obligation to send their daughters to a formally acknowledged school: see Or Kashti, ‘The Ministry of Education Filed a Police Complaint Against Ashkenazi Ultra Orthodox who Refrain from Sending their Daughters to Study with Mizrahi Girls’, Haaretz, 7 March 2010, available at http://www.haaretz.co.il/news/education/1.1192186 (in Hebrew).

101 Some chronology: the case was decided in July 2009, yet the petitioner has filed at least three contempt of court motions against the respondents for not complying with the Court's order in its initial decision. The case was eventually put to rest with the parties notifying the Court of a ‘settlement’, which was in actuality the result of mutual ultra-orthodox pressure to refrain from using the Court's services. The reluctance from using state legal services and resorting to Rabbinical Jewish institutions is well anchored in ultra-orthodox Jewish tradition, whereby the secular legal system is considered illegitimate. The Old Testament states: ‘Now these are the ordinances which thou (tha-oo) shalt set before them’ (Exodus 21, 1). The Jewish Talmud interpreted ‘before them' and not ‘before non-Jews (‘Nochrim’) or Laymen' (Divorce 88, page 2). In other words, the Talmud concludes that legal conflicts should be settled by no one other than a Jewish rabbinical judge. Moreover, the prohibition includes non-ordained Jewish rabbinical wise men, who are still considered laymen.

102 Mizrachi (n 12).

103 Noar Kahalacha (n 3), opinion of Justice Meltzer, para 4.

104 The most prominent Israeli legal database, Nevo, indicates that the case has been cited 106 times since the judgment was first delivered: see Nevo Legal Database, available at http://www.nevo.co.il.ezproxy.colman.ac.il/PsikaSearchResults.aspx?MenuId=10.

105 At least 40 cases were decided during 2009 and 2010, according to a study mapping these decisions: Bitton (n 81) 490.

106 ibid 485–513. A thorough review of tens of cases indicates that in only one of them did the court directly address the plaintiffs' cause of discrimination as emanating from their Mizrahi identity.

107 See the Law's explanatory notes (n 95).

108 An elaborate analysis of the similarities these cases share with Noar Kahalacha is provided at Bitton (n 81) 513–15.

109 Mizrachi (n 12).