Disappointing Constitutional Court Judgment Still Opens Opportunities to Fight Segregation

02 September 2015

The Constitutional Court of the Czech Republic has delivered an important school segregation judgment. Although the Court refused to overturn a Supreme Court ruling finding no discrimination, the Constitutional Court established that judges cannot dismiss discrimination claims in education cases based on simple percentages.

As a child, Mr. Suchý was raised in state care (like so many Romani children in the region). He was forced to attend an elementary school designed for children with mental disabilities as he was told he could not handle the curriculum in mainstream education. When released from this special school, he pursued a requalification training to receive the mainstream elementary school leaving certificated allowing him to enrol in the high school. He successfully finished in 2005. He complained about being enrolled in the special school not because of his abilities but because of his Roma ethnicity, and he sued the Ministry of Education. The core of his case was whether and how discriminatory practices can be proven using statistical data. His legal battle has become one of the most visible cases of legal struggle against segregation.

In an unhelpful judgment, the Supreme Court had declared that segregation only exists, legally, if the proportion of Roma is above 50%. Yesterday the Constitutional Court ruled the Supreme Court was wrong to declare the 50% threshold for discrimination cases. They nonetheless found that in the individual circumstances of Mr Suchy’s case, there was no discrimination. In reasoning the ERRC thinks is questionable, the Court found that Mr. Suchý was not himself subject to a general practice of discrimination, given the number of times and intensity with which he was tested. In that sense, the judgment not only failed to condemn the widely-known, racially discriminatory effects of the Czech testing system; it also affirmed the failure to ensure inclusive education for all children in the Czech Republic.

“While we are disappointed that there was no finding of discrimination, the Constitutional Court’s judgment confirms our conviction that school segregation is more than just a question of number-crunching. Discrimination against Roma in school takes many forms, often insidious, and cannot be summed up in a single percentage or any other number. Courts must look more carefully than they, sadly, usually do.” - says Adam Weiss, Legal Director of the European Roma Rights Centre.

“The Constitutional Court raised an interesting legal question, challenging the general conclusion of the European Court of Human Rights that stated in the judgement D.H. and others v. the Czech Republic that in case of a indirect discrimination the circumstance of the individual cases are irrelevant. According to the Constitutional Court the assessment of individual circumstances may lead to the conclusion that the defendant rebutted the presumption of discrimination if an exception from the general discriminatory practice is established. Such a legal opinion surely deserves a further review” – argues Dr David Strupek a lawyer with whom the ERRC frequently collaborates, and who acted in the Suchý case.

Anti-segregation activists often rely on statistical data to prove school segregation, but the essence of segregation lies in the discrimination against each individual affected. It is about what education authorities are attempting to do and are actually doing to Roma children and communities by educating their children separately or differently. The ERRC will continue to press this line of argument in cases in the Czech Republic and elsewhere.

Background:

• The Czech Constitutional Court in 1999 rejected the discrimination claim of 19 DH applicants, who consequently turned to the ECHR
• 8 years ago the ECthR issued a judgment in the DH case in which it held that there has been a discrimination of Roma children in access to education in Czech Republic. The decision of the Czech Constitutional Court from yesterday confirmed this.
• This is the issued the first judgement on school segregation since the ECtHR found country discriminating Romani children in education in the DH case.
• Although the court did not find discrimination in this case, it nonetheless established that judges cannot dismiss discrimination claims in education cases cannot be filtered through any based on simple percentages.
• Details of the DH case: http://www.errc.org/article/ostrava-case-dh-and-others-v-the-czech-republic/2945.

Further information and interview opportunities:

Szelim Simándi
simandi.szelim@xkk.hu
+36202658562