Supreme Court Questions State's Exclusion of Arab Towns from National Priority Area "A" for Education

On 9 November 2004, the Supreme Court of Israel held a hearing on a petition filed by Adalah seeking the cancellation of a 1998 governmental decision, which classified 553 towns and villages as National Priority Area "A" for the receipt of a host of lucrative educational benefits; only four small Arab villages were included on the list. A seven-justice panel, headed by Supreme Court Chief Justice Aharon Barak presided over the hearing.

The petition was submitted in December 2003 by Adalah General Director, Attorney Hassan Jabareen, in Adalah's name and on behalf of the High Follow-Up Committee for Arab Citizens in Israel and the Follow-up Committee on Arab Education, against the Prime Minister. This is the second petition filed by Adalah challenging the government's decision. The first petition, submitted in May 1998, remained pending before seven justices of the Supreme Court for five years, before the Court requested that Adalah re-submit it.

The 1998 governmental decision divided the country into 3 areas: "A," "B" and "no status." Towns classified as "A" priority areas receive substantial benefits from the government, such as extra educational funding and tax breaks to local industries. Residents of these areas receive enormous personal economic benefits such as additional mortgage grants and loans, tax exemptions, and educational benefits such as free pre-schools for children, additional hours of schooling, computer laboratories fully funded by the Ministry of Education, and exemption from examination fees.

Attorney Jabareen argued at the hearing that the government's decision determines areas of national priority in an arbitrary and discriminatory manner, without legislative authorization or clear, objective criteria.

He then presented a map produced by the government to the Court, on which areas designated as National Priority "A" for education are color-coded. The map clearly demonstrates that the borders of the national priority area are drawn close to Arab towns and villages, and yet exclude them. The state argued that the objective of the decision is to encourage Israeli citizens to relocate to peripheral areas, and to support towns which absorb new Jewish immigrants (olim). In response, Justice Heshin asked the Attorney General's (AG) representative, Dana Briskman, why she would not admit that the Israeli government is attempting to "Judaize the Galilee," and further questioned where the state of Israel actually exists, if all of the color-coded areas denoted on the map are considered the periphery.

Adalah argued that the goal of assisting towns which take in olim is discriminatory against Arab citizens of Israel for three reasons: (1) Arab towns do not receive new Jewish immigrants, and therefore the decision effectively excludes them; (2) Israeli law already provides for a wide range of existing benefits and assistance for olim; and (3) if the aim of the decision is to facilitate the immigration of olim, then there is no reason for the educational benefits available under the decision to be extended to entire towns or villages.

Justice Jubran requested an explanation from the state as to why the colored borders are always positioned in a manner which excludes Arab towns from the National Priority Area "A". Justice Heshin asked the state whether any internal criteria exist to govern the drawing up of the borders of these areas. The state responded that the logic for the map is evident from the map itself: to encourage individuals to move to these areas. The AG's representative added that this logic also explains why benefits are afforded to entire towns and villages.

In the petition, Adalah argued that the government decision is unlawful and should be cancelled as the government lacks authority to divide the country into national priority areas: the economic benefits provided to these selected towns and individual residents are of such a magnitude as to require statutory legislation that authorizes their provision and sets forth specific objective criteria for their distribution. The government's scheme, Adalah contended, lacks such criteria. Adalah further stated that the purpose of designating certain towns as national priority areas in the field of education is to improve the educational systems in poorer towns. However, although the disparity in educational attainment levels and the quality of facilities between Jewish and Arab schools is overwhelming, Arab towns are effectively excluded. For example, although the disparity in educational attainment levels and the quality of facilities between Jewish and Arab schools is overwhelming, Migdal HaEmek and Natserat Illit (two Jewish towns in the north of Israel) receive priority "A" educational benefits, while eleven neighboring Arab towns and villages do not receive these benefits. Adalah demanded that the eleven villages be classified as priority "A" for the purpose of receiving educational benefits. The fact that the government did not include Arab towns and villages in priority "A" for educational benefits constitutes discrimination on the basis of nationality, Adalah argued.

In March 2004, at Adalah's request, the Court issued an order nisi (order to show cause) as part of the new petition, directing the AG's Office to explain the exclusion of the seven Arab Bedouin towns in the Naqab (Negev) from the National Priority Area "A" list in the field of education. Adalah advanced two main arguments as the basis for this order: (1) the seven Arab Bedouin towns should be included on the list, as the official data shows that they are the most in need of such a program. In comparison to Jewish towns, they are by far, the most economically disadvantaged towns in Israel, with the lowest levels of educational attainment; and; (2) in its final report, the official Or Commission of Inquiry, which investigated the causes and results of the October 2000 protest demonstrations, recommended that the state give special attention to the Arab Bedouin, emphasizing budgets that will close the gaps in education, housing, industrial development, employment, and services.

In its March 2004 response to the order nisi, the state argued that dividing the state into National Priority Areas has been a part of the government's political program since the early years of the state, and, thus, it is a legitimate policy. Further, the AG's Office stated that the decision is not based socio-economic factors, adding that, while it is true that there are no written criteria for the classification scheme, the designation is based on geographical considerations.

The case is pending for final judgment by the Supreme Court.

H.C. 2773/98 and H.C. 11163/03, The High Follow-up Committee for the Arab Citizens in Israel, et. al. v. The Prime Minister of Israel (case pending).