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.
Mara’abe v. Prime Minister of Israel