THE ERRC LEGAL STRATEGY TO CHALLENGE RACIAL SEGREGATION AND DISCRIMINATION IN CZECH SCHOOLS1
The European Roma Rights Center works to contribute to the development in Central and Eastern Europe of public interest law, which is a conscious attempt to use law as a tool of social change. A major preoccupation of the ERRC is litigation in defense of Roma rights. We assume that defending the legal rights of members of the Roma minority in those countries where this minority is disadvantaged is a contribution to PUBLIC INTEREST law, insofar as it challenges that very disadvantaged status. Every time a Romani person goes to court freely and deliberately, it is a small step in the direction of a less racist society.
With its limited resources, the ERRC cannot support all the 'Roma cases' in the region. A strict selection is practised each time we contribute to litigation on behalf of Roma. Since 1996, ERRC has made several hundred legal cases involving Romani clients possible. But our greatest hope lies in anti-discrimination litigation, i.e. the attempt to challenge in court systemic, entrenched societal discrimination. We go to court not because we are fond of suing governmental agencies and institutions. Nor do we believe that bringing lawsuits is the only or the most effective way to remove race discrimination from a democratic society. Rather, we want to reaffirm the principle that the right to be free from race discrimination, including in schooling, is an entitlement of every individual and the government has an obligation to ensure freedom from discrimination.
On 15 June 1999, twelve Romani children in Ostrava and their parents, with the support of several Romani leaders and human rights organisations, all coordinated by the ERRC, filed an action in the Constitutional Court of the Czech Republic, challenging and seeking remedies for systematic racial segregation and discrimination in Czech schools2.
In brief, the twelve claimants asserted that they and numerous other Romani children had been segregated into special schools for the mentally deficient because they were Roma. The result of such segregation has been a denial of equal educational opportunity for most Romani children. Racial segregation and discrimination in education is illegal. It violates the Constitution of the Czech Republic, the Czech Charter of Fundamental Rights and Freedoms, provisions of Czech domestic law, and numerous binding international treaties including the European Convention on Human Rights.
The lawsuit in the Constitutional Court was filed against five Ostrava special school directors, the Ostrava School Bureau and the Ministry of Education.
The ERRC spent eight months setting up the legal case in Ostrava, the third biggest city in the Czech Republic3. I early 1999, there were eight special schools in the district of Ostrava, responsible, according to the Ostrava School Bureau, for "educating mentally retarded pupils." There were seventy basic schools for 'normal' pupils. The ERRC collected statistics from every school in the city of Ostrava. Each special school and each basic school stamped and signed a document testifying to the exact number of Romani and non-Romani pupils in their school. The data showed that, whereas only 1.80% of non-Roma students in Ostrava were in special schools, 50.3% of Ostrava's Romani students were in special schools. Thus, the proportion of the Ostrava Romani school population in special schools outnumbered the proportion of the Ostrava non-Romani school population in special schools by a ratio of more than twenty-seven to one. Stated differently, Romani children in Ostrava were more than 27 times as likely to end up in special schools as were non-Romani children.
The above statistics further indicated that, although Roma represented less than five percent of all primary school-age students in Ostrava, they constituted more than fifty percent of the special school population. And Ostrava is far from an isolated example. Nationwide, as the Czech government itself concedes, approximately 75% of Romani children attend special schools, and substantially more than half of all special school students are Roma4.
The degree of racial segregation revealed by the above statistics was reproduced within the schools. Thus, of the eight special schools in Ostrava, Roma amounted to more than 50% of the student population in five schools, more than 75% of the student population in four schools, more than 80% in three schools and more than 90% in two schools. In no Ostrava special school did the Romani proportion of the student body fall below 16% - well over triple the Romani percentage of the Ostrava student population as a whole.
By contrast, in the Ostrava basic schools, 32 of these schools had not a single Romani student. In an additional 21 basic schools, there were Roma students, but they numbered fewer than two percent of the student population. Thus, in a total of 53 basic schools in Ostrava - 75% of all basic schools in the district - Roma constitute ed fewer than two percent of the student population, although Roma as a whole constitute more than four percent of the overall Ostrava primary school-age student population. Ostrava's special and basic schools are effectively segregated on the basis of race. In other words, there exist two separate school systems for members of different racial groups - special schools for Roma, basic schools for non-Roma.
At the request of the ERRC, Professor Daniel Reschly, Chair of the Department of Special Education at Vanderbilt University in the United States, and one of the most renowned experts in the world on the overrepresentation of minorities in special education, examined the data from the Ostrava schools and prepared a report. He stated that the degree of overrepresentation of Roma students in Ostrava special schools is unprecedented, and is itself prima facie evidence of racial segregation and discrimination.
This pattern has not gone unnoticed by international monitoring bodies. As recently as March 1998, the United Nations Committee on the Elimination of Racial Discrimination, considering reports of overwhelmingly disproportionate placement of Romani children in special schools, condemned the practice as "de facto racial segregation."
As the report of Professor Reschly demonstrates, the size of the overrepresentation of Roma in special schools in the Czech Republic is qualitatively higher - indeed, it is of a different dimension - than analogous measures of overrepresentation of racial minorities in other contexts. Thus, a recent United States government study of overrepresentation of racial minorities in special education classes in the New York City area expressed concern about what it termed “wide discrepancies“ in special education placements that appeared to be based on race and ethnicity where “black students were more than twice as likely as white students to be referred to special education.” In Ostrava, by contrast, the percentage of Roma in some special schools is several hundred percent higher than the Romani proportion of the overall school-age population. Several laws and court cases [in the United States] testify to the fact that discrimination based on faulty IQ tests or improper use of tests has occurred in US public schools, but never to the extent documented by the statistics from Ostrava.
As a result of their segregation in dead-end schools for the "retarded," the plaintiffs in the ERRC lawsuit, like many other Romani children in Ostrava and around the nation, have suffered severe educational, psychological and emotional harm, including the following:
The presence of such high numbers of Romani children in special schools is often explained by the fact that they fail the IQ tests administered in the Educational Psycholigic Centres (the PPP centres). However, a plethora of indicia demonstrate that the evaluation mechanisms employed to assess "intelligence" are fatally flawed and unreliable:
Nor are other attempts to explain away racial discrimination more persuasive:
As to alleged language deficiencies: First, no other language minority in the Czech Republic (e. g. Vietnamese, Polish etc) is overrepresented in special schools at a comparable level to that of the Roma. Second, even if there was a language problem, it is no answer to send Romani children to special schools. Rather, as international law requires and other European countries do, the government must provide adequate education capable of addressing the needs of students whose first language is other than Czech.
The generally lower socio-economic status of Roma does not by itself explain the statistical disparity in special schools. Many poor ethnic Czech children study and excel in basic schools. Moreover, any allegedly greater risk of mental or physical disease among Roma due to malnutrition and/or inadequate medical care would not explain why Roma are not similarly overrepresented in schools for the physically disabled.
Finally, parental consent is a false and insufficient justification for the systematic practice of racial segregation. First of all, not all parents consent. A number of parents report that, notwithstanding their failure to consent, their children have been placed in special school. As importantly, even when granted, parental consent, in order to have legal effect, must be informed consent. But in Ostrava, as in other parts of the Czech Republic, numerous parents, including parents of some of the plaintiffs herein, have not been adequately informed of numerous facts of great significance, including the following:
Indeed, Romani parents, like Czech society as a whole, are all too often mystified and overwhelmed by intelligence test results and evaluations by educational "experts". Parents often receive evaluation reports only at the very meeting with officials where their consent is sought - thus giving them little or no opportunity to review and assess the findings - and the reports are frequently communicated summarily, and/or in professional jargon which is unintelligible to the layperson.
Finally, a number of Romani parents, including parents of some of the plaintiffs, have consented to their children's placement in special schools out of reasonable fear of racial hostility against Roma in basic schools. A wealth of evidence suggests that Romani children in Ostrava basic schools routinely encounter racially-offensive speech, racial exclusion (being forced to sit in the back of the class), and threats of racial violence on the part of teachers, administrators and non-Roma students. Indeed in March 1999, an anonymous letter was delivered to one basic school in Ostrava which threatened to bomb the school unless all Roma children were told to leave.
Given the crucial nature of the decision at issue, and the permanence of a school assignment in practice, blaming the parents for consenting amounts to little more than a post hoc justification for a discriminatory policy.
The facts concerning the overrepresentation of Romani children in special schools have long been known. Nor does the present government vigorously dispute them. Indeed, a number of reform proposals are now under consideration in various government circles to address what is widely perceived to be a problem. To date, however, racial discrimination and segregation persist unchanged. Notwithstanding any current talk of reform, since well before 1989, Czech school authorities have knowingly assigned Romani children to special schools in disproportionate numbers, aware that the vast majority were not mentally deficient. Thus, as far back as 1984, according to official government statistics, half of all Romani students were attending special school. The government's maintenance in force over many years of a policy generating massively discriminatory effects evidences, at a minimum, a willingness to tolerate the wholesale denial of educational opportunity to generation after generation of Romani children. The plaintiffs bringing the lawsuit are no longer willing to pay this price.
The twelve Plaintiffs filed a case with the Constitutional Court in the Czech Republic on June 15, 1999 to obtain, cumulatively, the following remedies:
It was requested that components of the educational reform plan should include, at a minimum, the following:
On 20 October 1999, the Constitutional Court dismissed the twelve cases. The reasoning of the Court was as follows:
The ERRC believes that the judgment of the Constitutional Court is flawed. In particular, international case law holds that a claim of discrimination is made out where others in a comparable position to the Plaintiffs are treated differently and that the difference cannot be objectively and reasonably justified. ERRC believes that the Plaintiffs had proved this by statistical evidence of the numbers of Romani children in special schools in Ostrava, as well as a wide range of expert reports. The Constitutional Court acknowledged the above legal principle; however, it then failed to apply the legal test and further failed to give any reason as to why it did not follow international norms. The Constitutional Court also failed to comment on the wealth of evidence submitted by the Plaintiffs: for example there were at least five expert psychological reports claiming that the system of IQ tests in the Czech Republic to verify the intelligence of Romani children was flawed and dangerous. There were statements filed by teachers alleging race discrimination in the special school system; and a host of other cultural experts also gave written opinions. All this evidence was ignored by the Constitutional Court.
In a highly politicised debate, one may understand if not accept a Constitutional Court’s sidestepping of the issues involved, while still claiming that the government is responsible. This is evidenced by the Court’s comment:
'The constitutional court assumes that the relevant authorities of the Czech Republic shall intensively and effectively deal with the plaintiffs' proposals. This concerns in particular the proposals 1,3 and 4 of this resolution8'
In other words, the Constitutional Court appears to find merit in the Plaintiffs' claims, but refuses to consider them.
Froma our point of view, it is a great shame that the highest court in the land cannot be relied upon to at least fully consider the evidence in the case. Following this judgment, the Plaintiffs will now file claims for race discrimination against the Czech government with the European Court of Human Rights within the next few months.
Footnotes1 This paper reflects the work of the European Roma Rights Center to challenge the patterns of race segregation of Romani children in Czech special schools. It is a result of the collective work of the ERRC staff and collaborators, cordinated by ERRC lawyer Debbie Winterbourne.
2 Usually a Plaintiff would have to exhaust prior remedies in the lower courts, before filing an action in the Constitutional Court. There is one exception however, which the Constitutional Court itself confirmed was applicable in the present case: where 'the significance of the complaint extends substantially beyond the personal interests of the complainant.'
3 The results of the ERRC research of the schooling of Romani children in the Ostrava area have been publicised in the report „A Special Remedy: Roma and Schools for the Mentally Handicapped in the Czech Republic“, published by the organisation in June 1999. A Czech language translation of the report was published simultaneously.
4 Government Resolution No. 279 of 7 April 1999, "Draft Conception of the Governmental Policy towards the Romani Community".
5 Recently Monika Horakova MP tabled an amendment to section 28 of the Schools Law to attempt to rectify this gross inequality.
6 See section 6(2) of the Special Schools Decree 1997
7 But note comment of the Court that 'certain persuasiveness of the plaintiffs arguments must be admitted'.
8 1 = race discrimination; 3 = duty to monitor; 4 = compensatory schooling and apology. (unofficial translation of the court decision into English by the ERRC).