September 17, 2010
From a minority perspective, this week was not a good week in Belgium. On Wednesday, a television broadcast proved that employment agencies cooperate actively with employers who don’t want to hire people with a foreign background (in Belgium the so-called “allochtonen”). An undercover journalist who posed as an employer searching for new employees, asked the agencies not to select people from a foreign background. Out of the 8 agencies, 6 admitted not having any problem with this question, even if it is unlawful. One of them literally said: “the client is king”!
Today was another sad day. A Belgian school, in the city of Lokeren, divides its children depending of their being “autochtoon” or “allochtoon” (this is how persons from respectively Belgian and immigrant roots are named in Belgium ). This school is a so-called concentration school where 70% of the pupils have a different background. Because of these statistics, parents of “autochtone” children take their children away from this school and bring them to a ‘whiter’ school. This is a well known phenomenon. The school reacts to this trend by putting all the “autochtone” children in one class and all the other children in an other class. This way the kids are separated according to their ethnic background.
For human rights lawyers this situation sounds very familiar especially for lawyers who study the case law of the European Court of Human rights. The Court has several times been confronted with segregation in schools, mostly concerning Roma pupils. I always wondered how this cases could be interpreted with regard to the rest of Europe. Also in “western” Europe, there is still a clear gap between pupils from another ethnic background and pupils with an “autochtone” background. When I look at the Belgian situation, it is clear that children with a foreign background are overrepresented in some educational fields and in other fields still underrepresented. This is due to several reasons. On the one hand these children generally have a lower socio-economic profile and are thus more at risk to end in some particular educational fields, but on the other hand sometimes this categorization is due to school policies based on prejudices.
This case is a good example of the latter. The motivation of the administration of the school for separating its pupils according to ethnicity is according to the Belgian media the following: “In some classrooms there would be only two or three Flemish children and we wanted to avoid this situation. This is why we decided to put these [Flemish] children together. It is important to make sure that the children can connect with each other, also outside the school. Otherwise they will also leave the school”.
What does this mean? Is it not important than that all children mix together, also outside the school? Consider the opposite situation in a so-called ‘white school’ where the school population consists of 70% of Flemish pupils and of 10 % pupils with a foreign background. Would the director also place the non-Flemish children together in one class room so that they can “connect with each other”? Such a policy where pupils are separated only according their ethnic origin is a very prejudiced stance. It is based on the assumption that all children with another ethnic origin have the same capacities and all pupils from a Flemish origin have the same capacities. This is a wrong assumption, since you will find in both groups children with different capacities. Clearly, the objectives of the school were not based on objective criteria, such as the personal difficulties of some pupils, but more on the fear that parents would withdraw their children from the school and consequently the fear that their school will become a ‘black’ school.
According to the European Court of Human rights, discrimination means treating differently, without any objective and reasonable justifications, persons in relevantly similar situations. (Willis v. the United Kingdom, no. 36042/97, §48). Moreover, the Court established in its case law that “discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination”. (D.H. a.o. v. The Czech Republic, no. 57325/00, §176) and it also held that “no difference in treatment which is based exclusively or to a decisive extend on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures”. (D.H. a.o. v. The Czech Republic, no. 57325/00, §176)
The difference between the facts in the above cited case of D.H. and this Belgian example is that in D.H. the discrimination was only of an indirect nature, whereas in this case the administration of the school admits that pupils are treated differently on the ground of their origins. The reason given by the school can hardly be seen as an objective and reasonable justification.
The Court also held very beautifully in D.H. that “(…)the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment”. (D.H. a.o. v. The Czech Republic, no. 57325/00, §176)
Following this line of reasoning, the school should stimulate the mix between its pupils instead of segregating them out of fear of becoming a “black” school. In a school ALL pupils should be king!