29 July 2007 - Discrimination . . . or not?

I recently read an article by Eyal Benvenisti and Dahlia Shaham in the New York University Journal of International Law and Politics (36 NYUJILP 677 for all you WestLaw freaks) entitled "“Facially Neutral Discrimination and the Israeli Supreme Court.”

The authors that the Israeli High Court “has professed to respect the principle of equality by adopting a color-blind approach, while allowing the Israeli bureaucracy to allocate public resources with little accountability”—a contention that, even if true, would hardly set Israel apart from most other democracies (and the question is not even worth asking of Israel’s neighbors in the Middle East).

Central to the court’s role here is its responsibility for protecting minority rights. The authors refer to James Madison’s defense of the constitution in the Federalist, arguing that the separation of powers and the counter-majoritarianism of the courts could serve as useful remedies. The first, the authors argue, is useless without the second, which was the only real guarantor of minority rights in the United States.

Sometimes, the authors argue, minorities succeed in “capturing” part of the political process, as Jewish religious groups have done on certain issues in Israel. Here, the courts must intervene to dislodge the minority. The courts investigate both the substance of state decisions—whether discrimination was intended or resulted—as well as the procedure—whether decision-making was sufficiently inclusive.

The authors argue that the Israeli High Court does not use either of these approaches, but rather a “color-blind” approach that allows surreptitious discrimination to continue. They seek to prove this by focusing on “the allocation in Israel of public resources, such as state lands, education, and financial support.” And they seek to suggests judicial strategies for intervening to stop discrimination.

Instead of discrimination on the basis of army service, which used to hurt minorities most, the state now has opportunities for discrimination because these minorities live in “homogenous territorial enclaves” and have different institutions and interests. This leads to potential discrimination in development status, municipal boundaries, development, land allocation, educational and cultural funding, etc.

An examination of Benvenisti and Shaham’s thumbnail sketch of the potential discrimination suggests two conclusions: first, that the amount of discrimination is not severe, or is at least diminishing; second, that minority groups that lose out (such as Arabs) tend to be more poorly politically organized than minority groups that are well-organized and able to advocate their interests (ultra-Orthodox Jews).

The court has responded, the authors acknowledge, by upholding the principle of equality. However, they argue: “The simple color-blind application of the non-discrimination principle proves insufficient mainly in two contexts: (1) in protecting minority interests against facially neutral discrimination; and (2) in recognizing special needs of certain minorities that require positive measures, such as public funding of cultural institutions and educational programs.”

The authors argue that the Israeli court eschews the “strict scrutiny” test applied in American courts, which they describe as an investigation of whether discrimination is justified by some compelling government interest. However, they shift the goalposts: the “strict scrutiny” test applies to actual, not potential, discrimination.

The cases they use to demonstrate the pitfalls of color-blindness are from the early period of the state’s history, where color blindness was the norm throughout the democratic world. More recent cases demonstrate not only the vigilance of the Court against overt discrimination, but also the Court’s suggestion of a demographic (80/20) allocation of government resources to Jews and Arabs—an unusual step.

The authors go on to talk about the limited fact-finding powers of the Israeli High Court, as well as other institutional limitations. They complain that “what is often clear to readers of newspapers becomes unclear in court”—not questioning the fact-finding acumen of journalists, of course—and that “[a]t most, the court will require [state agencies] to act in accordance with the law.”

The proposed remedies include having judges prescribe procedural review mechanisms in state agencies, moving to systemic judicial pronouncements rather than encouraging ad hoc out-of-court settlements, and ensuring minority representation in state decision-making. This might be welcome interventions, but they might well be considered matters for the legislature, not for the courts.

In short, what the article provides is not concrete evidence of discriminatory rulings by the Israeli High Court but a critique of its judicial philosophy, which in the authors’ view is not activist enough. The need for a shift is not justified here.