European Court Fails to Find Czech Roma Children Victims of Racial Discrimination in Education

BUDAPEST—The European Court of Human Rights yesterday ruled against 18 Roma children who had been forced to attend segregated schools in the Czech Republic.

The case of D.H. and Others v. the Czech Republic was brought before the European Court of Human Rights in an effort to put an end a widespread practice of discrimination throughout central and south east Europe, where Roma children are routinely placed in schools for the mentally disabled regardless of their actual intellectual abilities.

The panel of judges on the case, who voted six to one against the schoolchildren, acknowledged that the applicants' complaint "is based on a number of serious arguments." In particular, "Council of Europe bodies have expressed concern about the arrangements whereby Roma children living in the Czech Republic are placed in special schools and about the difficulties they have in gaining access to ordinary schools."

Moreover, the majority affirmed that, "if a policy or general measure has disproportionately prejudicial effects on a group of people, the possibility of its being discriminatory cannot be ruled out even it if is not specifically aimed or directed at that group."

Nonetheless, the panel held, as "the system of special schools was not introduced solely to cater for Roma children," the applicants had not proven a violation of Article 14 of the European Convention of Human Rights (prohibiting nondiscrimination), taken together with Article 2 of Protocol No. 1 (the right to education).

Concurring with the majority "only after some hesitation," Judge Costa of France observed that, "[g]enerally speaking, the situation of the Roma in the States of Central Europe ... undoubtedly poses problems." When it comes to the special school system at issue in this case, "[t]he danger is that, under cover of psychological or intellectual tests, virtually an entire, socially disadvantaged, section of the school population finds itself condemned to low level schools, with little opportunity to mix with children of other origins and without any hope of securing an education that will permit them to progress." Judge Costa noted that the court's grand chamber might be "better placed than a Chamber" to revisit the case-law applicable in this area.

In dissent, Judge Cabral Barreto of Portugal noted that the Czech government had previously conceded that, at the time relevant to the applications before the court, "Romany children with average or above-average intellect [we]re often placed in [special] schools on the basis of results of psychological tests;" "[t]he tests [we]re conceived for the majority population and do not take Romany specifics into consideration;" and in some special schools, "Romany pupils made up between 80% and 90% of the total number." Taken together, these concessions amounted to "an express acknowledgement by the Czech State of the discriminatory practices complained of by the applicants."

The court's decision is a blow to efforts to defend the rights of Europe's Roma to live as equal citizens in society. "This is a sad day for Roma and for the struggle against discrimination. The reality on the ground is unchanged. Systematic racial segregation in Czech schools continues to deprive thousands of Roma children of quality education," said Dimitrina Petrova, executive director of the European Roma Rights Center. "Since the European Convention on Human Rights is a living instrument according to the Strasbourg Court, we will work to ensure that our clients' commitment to equality is vindicated in future judgments."

Further, the decision marks a step backwards in the larger movement to expand the reach of human rights law. "The judgment's narrow conception of discrimination is at odds with developments in much of Europe and the world," said James A. Goldston, executive director of the Open Society Justice Initiative and counsel in case. "The Strasbourg Court has missed a golden opportunity to advance the cause of human rights."

Pursuant to rule 73 of the rules of court, the applicants have three months to request that the case be referred to the grand chamber.

This case originated with the unsuccessful filing of complaints in the Czech courts in 1999 on behalf of 18 children represented by the European Roma Rights Center and local counsel. In 2000, the applicants turned to the European Court of Human Rights, alleging that their assignment to special schools for the mentally disabled contravened the European Convention. Tests used to assess the children's mental ability were culturally biased against Czech Roma, and placement procedures allowed for the influence of racial prejudice on the part of educational authorities.

Evidence before the court, based on European Roma Rights Center research in the city of Ostrava, demonstrated that school selection processes frequently discriminate on the basis of race:

• Over half of the Romani child population is schooled in remedial special schools.
• Over half of the population of remedial special schools is Romani.
• Any randomly chosen Romani child is more than 27 times more likely to be placed in schools for the mentally disabled than a similarly situated non-Romani child.
• Even where Romani children manage to avoid the trap of placement in remedial special schooling, they are most often schooled in substandard and predominantly Romani urban schools.

Racial segregation in education remains widespread throughout the Czech Republic and in neighboring countries. European Roma Rights Center field research in five countries has consistently documented the separate and discriminatory education of Roma, as well as additional practices by educational authorities that result in the segregation of Roma in schools.

A European Roma Rights Center report describes the most common practices of segregating Romani children in education based on their ethnicity. These include segregation in so-called special schools for children with developmental disabilities, segregation in Romani ghetto schools, segregation in all-Romani classes, denial of Romani enrollment in mainstream schools, as well as other phenomena. Whatever the particular form of separate schooling, the quality of education provided to Roma is invariably inferior to the mainstream educational standards in each country.