Decision in HCJ 2814/97 -7/20/00

The Shahar Decision-HCJ 2814/97 -7/20/00
HCJ 2814/97

In the Supreme Court sitting as the High Court of Justice


The Honorable President A. Barak
The Honorable Justice Y. Zamir
The Honorable Justice D. Beinisch
The Petitioners:

The Follow-up Committee for Arab Education in Israel
Dr. 'Awad Farih, Coordinator, Negev Parents Coalition
Mahadi Turi (a minor)

The Respondents:

Ministry of Education, Culture and Sport
Government of Israel
Petition for an Order Nisi

Representing the Petitioners: Hassan Rafiq Jabareen, Esq.

Representing the Respondents: Malhiel Blass, Esq.


Justice D. Beinisch:

1. In the petition before the Court, the petitioners request an Order Nisi directing Respondent 1 to explain why it does not operate all Education and Welfare Services Department (hereinafter: the Department) programs in Arab educational institutions in Israel. The petitioners especially directed their petition to two programs that are part of the educational and welfare services of the Ministry of Education - the educational welfare program and the urban renewal program. In their petition, the petitioners laid out before us a rather gloomy factual base indicating that the Department, which they contend is the most important department involved in advancing Israel's weak populations by operating projects and programs in educational institutions, does not operate its programs in Arab educational institutions in Israel.

The state responded to the Order Nisi on 1 December 1997. Its affidavit states that the objective of the Department was from the start, in the middle of the 1970s, to treat the educational distress of needy residents of development towns and areas where socio-economic hardship and security problems were simultaneously present, and the increase in the number of former soldiers from poverty neighborhoods and those with origins in Islamic countries (Orientals) studying in post-high school institutions and in institutions of higher education.

In its affidavit, the state confirmed that, for more that a decade, the Department had not dealt at all with the Arab and Druze sector, which was handled by a Ministry of Education unit especially assigned to work in the Arab sector. In 1992, the Department also began to handle the minority population, but only in a relatively limited scope. However, the state declared that, "Following the filing of the petition, the respondent reviewed its position on the activity of the Department in the minorities sector and decided to expand its activity there, setting a goal that within five years, 20 percent of the Department's budget would be allocated to the minorities sector." The affidavit also mentioned that, as regards the urban renewal program - the Department's budget for this item is allocated to neighborhoods included within the urban renewal plan prepared in accordance with the government's decision, and that the goal of the Ministry of Construction and Housing, which is in charge of the matter, is to ensure that that within five years at least 20 percent of the neighborhoods included within the project are from the Arab and Bedouin sector.

2. Examination of the petition was postponed several times for the reasons described below:

On 12 December 1997, the respondents filed their brief, in which the state announced, inter alia, that the Minister of Education and Sport had appointed a public commission, headed by Prof. Miriam Ben-Peretz, to examine Arab education and prepare a five-year program. The commission was requested to discuss all matters related to the activity of the Department in the non-Jewish sector, and to recommend an order of priorities for ministry budget allocations to this sector.

In a hearing on the petition, held on 16 December 1997, the state's counsel requested a postponement of several months so that the Minister of Education could review the report of the Ben-Peretz Commission, which was to be delivered to the minister within two or three months. In light of the importance of this commission in solving the problem of education in the Arab sector, we granted the state's request and postponed hearing of the petition for four months. The hearing was again postponed because the commission continued to be involved in its task.

3. On 26 May 1998, the respondents filed a supplementary response. It contained the Ben-Peretz Commission's recommendations, which related to several subjects, among them special education, physical development of the educational system, science and technology, hiring of teachers and in-service training, and also the Department. The commission recommended formulation of a detailed five-year action plan in the aforementioned areas. As regards the education and welfare services program, the commission's recommendations started with a statement that the commission recommends that "a principle of parity between the Jewish sector and the Arab sector be adopted in the Department's programs." The planned actions of the Department, which covered, as stated, five years, were described later in the document. The state's response further indicated that the director general of the Ministry of Education and Sport had decided that the Department would be given high priority in implementing the five-year plan in accordance with the commission's recommendations.

The response indicated that the respondents are instituting the Department's programs in the Arab sector, the goal being to allocate 20 percent of the Department's budget for the Arab sector. However, the respondents argued that it was impossible to allocate 20 percent of the budget to the Arab sector all at once without harming communities in which Department programs are currently being implemented. They also argued that, by their nature, the Department's programs extend over more than one fiscal year because they entail a process that takes time and requires that lessons be learned over a certain period of time. Therefore, the respondents requested that its position be adopted, whereby the goal that they had set for themselves - allocation of 20 percent of the Department's budget to the Arab sector - be attained within five years. On 11 June 1998, the respondents announced that the goal on budget allocations for the educational welfare programs would be attained within two years, and as regards the other allocations, within five years.

The petitioners did not oppose the goal that the respondents had set for themselves - allocation of 20 percent of the Department's budget to the Arab sector. At this stage of hearing on the petition, the dispute between the parties essentially related to the amount of time needed to investigate the discrimination against the Arab sector. The petitioners wanted us to order that the programs of the Department be implemented immediately, and not within the time requested by the state.

It can be held, then, that the matter before us was not a dispute in principle over whether the state has a duty to include the Arab sector in the special programs that are part of the educational and welfare services that the Ministry of Education provides. The state admitted that the Department had not acted in the Arab sector and presented the "historic" reasons that, they contend, were inherent in the situation leading to establishment of the Department. In light of the state's position as stated in its response, it is no longer important to conduct the historical analysis, because the state does not dispute that "students from the minorities, particularly students in grave distress, are entitled to educational services that will assist them in overcoming their difficulties, just like the Jewish students receive assistance from the ministry." The state further announced that, following filing of the petition, the ministry reviewed its position on the Department's activity in the Arab sector "and decided to expand its activity such that that the budget goal is that, within five years, 20 percent of the Department budget would be allocated for the minorities sector." In light of these comments, it is superfluous, of course, to discuss in principle the question of the duty of the state to ensure parity in educational allocations for the Arab sector. As stated, the only dispute remaining after receiving the initial responses on behalf of the state related to the period for implementing the undertaking of the state to reach the allocation objective.

4. We left the petition pending, at first following applications of the state, which was in the midst of examining the matter, and later because we wanted to investigate in depth the factual dispute on the changes that had occurred in the state's position since the petition was filed. In the context of this investigation, the parties filed additional statements, which included clarifications of facts related to the petition. On 17 March 1999, the respondents filed a supplemental response - the fourth response - which stated that the 20 percent goal regarding the educational welfare budget would be achieved in 1999, and that there had been progress in meeting the goal in other Department programs. One of the problematic points was the urban renewal program. The petitioners contended that the director general of the Ministry of Housing admitted to them that in 2000, too, additional communities and neighborhoods in distress within the Arab sector would not be included in the program.

In response to the statement of the respondents of 17 March 1999, the petitioners requested permission to submit an expert opinion dealing with calculation of the Department's budget. The petitioners' expert's opinion indicated that it is impossible to examine the figures of the Ministry of Education in the form that they were submitted in the state's response. The expert further contended that the Department's budget for the entire population had eroded.

In an additional supplemental response on behalf of the state (the fifth), of 2 March 2000, the state disputes the expert's opinion. According to the state, the opinion contains budget items that are not included in the Department. It was also contended that the figures presented in the opinion contained substantial errors on the amounts in one of the budget items, an error that changes the picture. The petition's framework is not suitable for a factual investigation of this kind, and, in any event, the opinion that the petitioners requested to submit does not refute the state's contentions on supplementing the gaps in the educational welfare services budget. The petitioners also raised, in their latter response, a claim on the inapplicability of the regular matriculation transition (RMT) program in the Arab sector. The state responded to this contention in detail and explained that there has been noticeable and consistent improvement over the years in the RMT program in the Arab sector, and that allocation of resources for this program is made on an individual basis upon examination of the specific request of schools wanting to institute a RMT program. The state also indicated that the reasons why the number of Arab students in the RMT program continues to be relatively low are complex, and that there is not necessarily a connection between instituting RMT programs in schools in the Arab sector and application of Department programs in this sector.

5. The latter response of the state further advised us that, "study of the 1999/2000 school year budget, which is partially drawn from the 1999 budget and partially from the 2000 budget, indicates that the general goal of allocating 20 percent of the Department budget to the minorities sector budget has already been achieved." The respondents point out that two budget items of the Department's entire budget have not yet reached the requested goal of 20 percent allocation for the minorities sector. In these items, too, the allocations are increasing, and it is to be hoped that the goal will be reached soon. The response also indicates, and this may be of major importance, that the Minister of Education decided to institute a program intended to make advances in the Arab and Druze educational system. This program in effect constitutes "affirmative action" and "to implement it, a special allocation was made for the minorities sector this year (budget regulation 24-01-41) in the amount of approximately NIS 50 million. It was also decided to allocate, within this framework, an additional NIS 50 million for four years - that is, a total allocation of NIS 250 million as affirmative action for the minorities sector." This is the wording of the notice submitted by the state.

6. The above indicates that, during the course of hearing the petition, significant progress was made in the respondents' application of Department programs in the Arab sector. Substantial measures had also been taken to remedy the injustice that had taken place in allocating educational resources in this sector over the years. Indeed, the background of the filing of the petition, as described in the material before us exposes a harsh picture of oppression of the Arab sector in the area of education. It is unnecessary to speak at length on the importance of the principle of parity and the importance of allocation of educational resources, in particular, that are discussed in this petition. This court has already stated that:

Education is a social tool whose importance cannot be exaggerated. It is one of the most important functions of a government and state. Education is vital to the existence of a free, living, and functioning democracy. It is a necessary element for every individual's self-realization. It is vital to the success and achievement of every individual. It is vital to the existence of society in which people live and work who improve their welfare and contribute, in doing so, to the welfare of the entire community.

(HCJ 1554/95, Shoharey GILAT vs. Minister of Education and Culture, Piskei Din 50 (3) 2, 24).

When it became apparent from the responses of the state that, as a result of the development that took place in the Department's budgets, the goal of allocating 20 percent of the Department's budget to the Arab sector had almost been met, it seems that the petitioners received, in effect, what they requested in the principal matter to which the present petition was directed, subject to the comments below on the urban renewal project.

7. As we mentioned at the beginning of our opinion, the petition is also directed against the failure to allocate education budget moneys for the "urban renewal" program, which is also included within the Department's budgets. In this matter, the petitioners contended that, despite the respondent's declaration that they intend to include additional Arab communities in the urban renewal program and to achieve the goal of allocating 20 percent of the Department's budgets to the Arab sector, Arab neighborhoods were not added to the list of neighborhoods in the project. As a result, there were no additional Arab communities to which the Department's urban renewal program could apply. In any event, the goal of allocating resources of the Department to the Arab sector was also not met.

The contention relating to the urban renewal program is made in general terms. The petitioners ignored the fact that the relevant educational welfare services budget is derived from a declaration that communities and neighborhoods are included within the urban renewal project, and that this declaration is made by the Minister of Construction and Housing and its application is not limited only to education. From the start, the state refrained, in the hearing on the dispute over the education budget, from relating to the broad subject of the urban renewal project, for which the Ministry of Education is responsible. At our request, the state added details on this matter in its answer of 17 March 1999, and also pointed out relevant new criteria that were to be presented to the government. The state's counsel also announced that "the goal of directing 20 percent of the Department's budget to the minorities sector also applies to the Department's urban renewal budget, and the goal will be reached, as far as possible, already in 2001."

We are aware that the subject of allocation of resources in the urban renewal project was not sufficiently clarified, because it was not treated in detail and with specificity, as required. As noted, the petition before the court focused on education, and more specifically, education and welfare services provided by the Ministry of Education, one of the programs included in this framework being provided in neighborhoods and communities included within the urban renewal project. The inclusion of a community or neighborhood in this project is a pre-condition to the existence of the urban renewal program operated by the Department. However, the Ministry of Construction and Housing is charged, based on principles set by the government, with including the communities and neighborhoods. This matter deserves, therefore, a separate inquiry that focuses on whether the criteria on which the government bases the urban renewal project are met. The petition before us focuses on the question of discrimination in educational welfare budgets. While expansion of the urban renewal program is part of a broad net that is not spread out before us in this petition, we did not consider it appropriate to discuss it in the context of the present petition.

It is not superfluous to repeat and emphasize what this court has stated regarding a petition drawn in general terms spreading a broad and unfocused net. The discussion in this court is not appropriate for sweeping examination of all the budgets provided by the government on every subject and generally also not regarding the education budgets. This court does not conduct a general review of state budgets, and is equipped to only examine concrete claims of discrimination. (Compare: HCJ 40/98, Adalah - The Legal Center for Arab Minority Rights in Israel et al. v. Minister for Religious Affairs et al., Piskei Din 52(5) 167, in which the petition was rejected because it related to a general claim of discrimination in religious budgets and did not focus on a specific matter with a proper factual basis; but see HCJ 1113/99, Adalah -The Legal Center for Arab Minority Rights in Israel et al. v. Minister for Religious Affairs et al., Piskei Din 54(2) 164, in which a new petition was filed, which focused on the violation of parity in allocating moneys for Arab cemeteries, and the court heard the case on the merits.)

The matter before the court was application of the Department's budget to the Arab sector. We can only repeat that, as to the petition, there was no dispute that education in the Arab sector had been oppressed for many years, and there was also no dispute that steps had to be taken to improve the situation. Based on the responses we received from the state, we were convinced that significant measures were taken to allocate funds to the Arab sector to achieve the goal of parity in educational welfare programs in accordance with the relative proportion of the Arab population in Israel. In particular, the change was reflected in the need to achieve advancement for the "weak" population from the socio-economic perspective, to which educational welfare budgets were allocated. Since the time that the petition was filed, the Ben-Peretz Commission submitted its recommendation of a five-year program for the Arab sector, Department programs were applied to the Arab sector in an amount close to 20 percent, and, in addition, the Ministry of Education adopted a policy of "affirmative action" for education in the Arab sector and allocated resources for that purpose.

Therefore, the matter of the present petition was thoroughly resolved and is superfluous. For this reason, the petition is denied.

In the aforementioned circumstances, and taking into account that, according to the response on behalf of the state, re-examination of the subject of the activity of the Department was conducted following filing of the petition, the respondents shall bear the expenses of the petitioners in the total sum of NIS 20,000.

President A. Barak: I concur.

Justice Y. Zamir: I concur.

Decided as aforesaid in the judgment of Justice D. Beinisch.

Given today, July 20, 2000.