The ERRC legal strategy to challenge racial segregation and discrimination in Czech schools

12 April 2000

The ERRC legal strategy to challenge racial segregation and discrimination in Czech schools¹

On 15 June 1999, twelve Romani children in Ostrava and their parents, with the support of several Romani leaders and human rights organisations, all co-ordinated 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 schools.² The lawsuit in the Constitutional Court was filed against five Ostrava special school directors, the Ostrava School Bureau and the Ministry of Education. It alleged that the general practice and application of regulations in the special education school system resulted in de facto and de jure racial segregation and discrimination of the twelve Romani applicants.

The problem of the overrepresentation of Romani children in special schools in the Czech Republic has long been known and the present government does not dispute the fact. To date, racial discrimination and segregation in the educational system persist though a number of reform proposals are now under consideration in various government circles to address what is widely perceived to be a problem. 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 schools. The government’s continued application 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 twelve Romani children in Ostrava and their parents who brought this lawsuit were no longer willing to pay this price.

The Applicants’ complaint asserted that they and numerous other Romani children had been segregated into special schools for the mentally deficient specifically because they were Roma. It alleged, inter alia, that the applicants had been subjected to racial segregation and discrimination in their assignment to special schools. The result of such segregation has been a denial of equal educational opportunity for most Romani children. Among other sources of law, the complaint relied upon the jurisprudence of the Strasbourg organs. It alleged that racial segregation and discrimination in education is violative of 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.

In their complaint, the applicants’ sought to obtain, cumulatively, the following remedies:

• a judicial finding that they had been the victims of racial discrimination and segregation in violation of Czech and international law;
• the establishment of a compensatory education fund to pay for the extra education and training required to compensate the plaintiffs — and others similarly situated — for the harm caused to them by segregation in special schools, enabling them to compete adequately for entrance to non-vocational secondary education; and
• an order compelling the Ostrava school board and the Ministry of Education to end racial segregation in Ostrava schools within three years and to develop an educational reform plan capable of achieving racial balance in Ostrava schools within that time.
  This last educational reform component of the remedies called for in the Applicants’ complaint demanded anti-racism training for all school teachers and administrators in Ostrava, the promulgation of guidelines to ensure that assessments of educational ability are not influenced racial prejudice, and a systematic monitoring of the suitability of special school assignments and reorientation of special school curricula to provide for mainstreaming of most students into basic schools.³ In addition, the applicants requested that there be a requirement of informed parental consent when Roma children are placed into special schools and that it be given in writing only after parents have been adequately informed of their rights and the consequences of giving such consent.⁴

The ERRC spent eight months setting up the legal case in Ostrava, the third biggest city in the Czech Republic.⁵ In 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 results of the collected data were shocking. 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. Ostrava is far from an isolated example. Nation-wide, 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 Roma.⁶

The degree of racial segregation evidenced 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 none of the Ostrava special schools 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 other 21 basic schools where the ERRC collected data, 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 constituted 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 had 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."

The report of Professor Reschly demonstrated that 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. For example, 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.

In the Applicants’ complaint they asserted that, as a result of such segregation in dead-end schools for the “retarded," they, like many other Romani children in Ostrava and around the nation, have suffered severe educational, psychological and emotional harm, which included the following:

• they have been subjected to a curriculum far inferior to that in basic schools;
• they have been effectively denied the opportunity of ever returning to basic school;
• they have been prohibited by law and practice from entrance to non-vocational secondary educational institutions, with attendant damage to their opportunities to secure adequate employment;⁷
• they have been stigmatised as “stupid" or “retarded" with effects that will brand them for life, including diminished self-esteem and feelings of humiliation, alienation and lack of self-worth; and
• they have been forced to study in racially segregated classrooms and hence denied the benefits of a multi-cultural educational environment.⁸

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 Psychological Centres (the PPP centres). However, a plethora of indicia demonstrate that the evaluation mechanisms employed to assess “intelligence" are fatally flawed and unreliable as testing methods that would accurately reflect the ability of Romani students. For example, many of the IQ tests administered to evaluate “intelligence" have been shown to generate racially-disproportionate effects and none of the testing techniques have ever been validated for the purpose of assessing Romani children in the Czech Republic. In administering tests to Romani children, insufficient care has been taken to account for, and overcome predictable cultural, linguistic and/or other obstacles which often negatively influence the validity of “intelligence" assessments. There are no guidelines which effectively circumscribe individual discretion in the administration of tests and the interpretation of results, leaving the assessment process vulnerable to influence by racial prejudice, cultural insensitivity and other irrelevant factors. Indeed, several psychologists informed the ERRC that there were no standard procedures for IQ testing, and that each psychologist could simply choose whichever method s/he thought to be appropriate in such an assessment. Finally, few, if any, Roma were consulted in the selection or design of the most commonly used tests.

In response to the alleged language “deficiency" problem that is often cited as a justification for the placement of Roma in special schools, it is clear that no other minority language in the Czech Republic (e.g. Vietnamese, Polish etc) is over-represented in special schools at a comparable level to that of the Roma. Additionally, even if there was a language problem, the solution is not 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 also 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 over-represented in schools for the physically disabled.

The applicants addressed the above mentioned issues in their complaint arguing that their assignment into special schools was a part of the “common practice in the application of respective statutory provision resulting in factual racial segregation and discrimination."⁹ They argued that first, by being placed into separate educational facilities on the grounds their race, they had been subjected to de facto racial segregation. And additionally, by the result of such segregation, they also suffered discrimination through interference with the enjoyment of their right to education; namely that they had been denied an adequate education because of their racial origin.¹⁰

On 20 October 1999, the Constitutional Court issued its disheartening decision dismissing the twelve cases. The Constitutional Court found, inter alia, that the Applicants’ allegations of racial segregation and discrimination were unsubstantiated. The Court, acknowledging that the “persuasiveness of the Applicants’ arguments must be admitted," found that it had authority only to consider the particular circumstances of individual Applicants, and was not competent to consider evidence demonstrating a pattern and/or practice of racial discrimination in Ostrava or the Czech Republic. The Court stated that “the plaintiffs [substantiated] their compliant by [extensive] statistical data and expert opinions but that they failed to recognise that the Constitutional Court is entitled to decide — with regard to constitutional cases — only individual legal acts and is bound to evaluate only particular circumstances of the individual cases" [and is not authorised to comment or rule on societal or cultural discrimination as a whole].¹¹ It held that the Applicants had not proved the existence of racial discrimination on an individual basis.

The Court also observed that the Applicants had not availed themselves of the opportunity to appeal the initial decisions that placed them in special schools, and that the Applicants’ parents had — with the exception of one Applicant — consented in writing to their placement in special schools. In effect the Court held that such procedural failures barred the Applicants from obtaining any remedy as to their racial discrimination in education, however well substantiated. As to the Applicants allegation that the parents were not informed as to the consequences of their children being placed in special schools, the Court held that the blame in this case lies with the parents who could have requested such information but failed to do so. In so holding, the Court simply refused to apply the applicable Strasbourg legal standards for proving racial discrimination under Article 14 of the Convention, notwithstanding the binding status which Article 10 of the Czech Charter of Fundamental Rights and Freedoms accords to duly ratified international treaties. Implicitly acknowledging the force of Applicants’ claims, the Court “assumed that the relevant authorities of the Czech Republic shall intensively and effectively deal with the plaintiffs’ proposals."¹² In response to the Applicants’ claim that the special schools were not sufficiently monitored and that they, the Applicants, were exposed to racial segregation and discrimination, the Court held that the Applicants failed to prove these claims on an individual basis and in fact went further to state that they didn’t even make an attempt to do so. The Court stated that “they [the Applicants] only refer to statistical data of the social, and cultural aspects of the problem" and that this “cannot play a decisive role in [adjudicating] individual cases.?¹³ Finally, the Court stated that it did not have jurisdiction to consider the Applicants’ request for an educational reform plan or an all-out ban on race discrimination and compensatory schooling.

Given the crucial nature of the decision at issue, and the lasting effects of an assignment to a special school, blaming the parents for consenting amounts to little more than a post hoc justification for a discriminatory policy. A number of Romani parents attest to giving consent 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.

The ERRC believes that the judgement of the Constitutional Court is fatally flawed. International case law holds that a claim of discrimination is made out where others in a comparable position to the Applicants are treated differently and that the difference cannot be objectively and reasonably justified. ERRC believes that the Applicants 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 Applicants: 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 side-stepping 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 resolution’¹⁴

In other words, the Constitutional Court appears to find merit in the Applicants’ claims, but refuses to consider them.

Having exhausted domestic remedies, on April 18, 2000, the applicants turned to the European Court of Human Rights in Strasbourg. Their Application contends that their assignment to special schools constitutes “degrading treatment" in violation of Article 3 of the European Convention of Human Rights. In so doing, it relies on the legal authority of the Strasbourg organs, which have made clear that “a special importance should be attached to discrimination based on race." The submission further argues that the Applicants have been denied their right to education, in breach of Article 2 of Protocol 1 of the Convention; that they have suffered racial discrimination in the enjoyment of the right to education, in violation of Article 14; and that the procedure which resulted in their assignment to special school did not afford the minimal requisites of due process required by Article 6(1). The Application asks the European Court of Human Rights to find violation of the above-noted Convention provisions and to award just satisfaction.

Endnotes:

1. 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 collevtice work of the ERRC staff and collaborators, co-ordinated 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. In violation of Czech law, once assigned to special schools, the applicants, like most other Romani children, have not been adequately monitored to ensure the continuing suitability of their placement in the special school.
4. A number of Roma parents reported that, notwithstanding their lack of consent, their children were placed in special schools. In Ostrava, many parents reported that they had not been adeqautely informed of the consequences when giving such consent. For example, they had not been advised that assignments to special schools are permanent and irrevocable and that graduates of special schools are effectively prohibited by law and practice from entrance to non-vocational secondary educational institutions.
5. 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.
6. Government Resolution No. 279 of 7 April 1999, "Draft Conception of the Governmental Policy towards the Romani Community".
7. Recently Monika Horakova MP tabled an amendment to section 28 of the Schools Law to attempt to rectify this gross inequality.
8. See Exhibit 27A.
9. See Exhibit 27A., Applicants' Petition to the Constitutional Court, p.7.
10. See Exhibit 27A.
11. See Exhibit 27K/ Decision of the Constitutional Court.
12. Ibid., p.18.
13. Ibid.
14. 1 = race discrimination; 3 = duty to monitor; 4 = compensatory schooling and apology. (unofficial translation of the court decision into English by the ERRC).