February 06, 2013
The Strasbourg Court has once more delivered a judgment in a Roma school segregation case. The applicants in Horváth and Kiss v. Hungary are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of these diagnoses, they were placed in a remedial school. Their education there was poor: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted, and they ended up de facto segregated from the wider population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 2 Protocol 1 in conjunction with Article 14 ECHR). The Strasbourg Court rules that they’re right: it finds a violation of the Convention on the ground of indirect ethnic discrimination.
Much of the reasoning in this case is familiar from other Roma school segregation cases, such as, notably, D.H. and Others v. Czech Republic (2007) and Oršuš and Others v. Croatia (2010). In this post, I will discuss the judgment and try to highlight what’s new in the Court’s reasoning.
I’ll be brief about the kind of steps the Court takes in an indirect discrimination case such as this one: the main principles are familiar from the other Roma school segregation cases. In a nutshell, then, the Court first establishes that there is a prima facie case of discrimination, because both in the past and in the present Roma kids have been overrepresented in remedial schools in Hungary in general, and also in this one in the city of Nyíregyháza in particular (par. 110-111). It then falls to the State to prove that “the difference in treatment had no disproportionately prejudicial effects”(par. 112). At this point, the judgment becomes a bit rambling. For the Court, the main issue seems to be:
to ascertain to what extent special safeguards were applied that would have allowed the authorities to take into consideration, in the placement and regular biannual review process, the particularities and special characteristics of the Roma applicants who sat them, in view of the high risk of discriminatory misdiagnosis and misplacement. (par. 121)
The answer to this is “no”; the State did not put in place the necessary safeguards to prevent misdiagnosis. The Government itself had acknowledged that the tests, which were the same for Roma children as for children from the ethnic majority, were partly culturally biased (par. 120). It is for this reason that the Court finds that the State’s argument that it properly tested the Roma kids, cannot serve as a sufficient justification for the impugned treatment (par. 123). The Court concludes that:
As a consequence, [the applicants] received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools. The education provided might have compounded their difficulties and compromised their subsequent personal development instead of helping them to integrate into the ordinary schools and develop the skills that would facilitate life among the majority population. (par. 127)
First of all, what I appreciate about this judgment is that the Court discusses both the problems relating to the long-standing inequality and discrimination of Roma, and the difficulties of children with learning disabilities. You might say that the Court takes an intersectional approach; combining a Roma-equality perspective with a mental disability perspective. The Court’s reasoning captures well the complexity of the situation wherein the applicants find themselves.
The other thing I appreciate is that the Court does not go along with the argument of the applicants that “Roma were uniquely burdened by the current system; no other protected group had been shown to have suffered wrongful placement in special schools based on the diagnostic system.” (par. 91). I can see why the applicants would make such an argument: they thought that in order to establish a prima facie case of discrimination, they had to prove that – as a group – they had it worst. Fortunately, the Court holds that a vulnerability competition (meaning a competition amongst groups for recognition of their vulnerability) is not necessary. The Court namely observes that:
a general policy or measure exerted a disproportionately prejudicial effect on the Roma, a particularly vulnerable group. For the Court, this disproportionate effect is noticeable even if the policy or the testing in question may have similar effect on other socially disadvantaged groups as well. The Court cannot accept the applicants’ argument that the different treatment as such resulted from a de facto situation that affected only the Roma (par. 110).
The lesson here for applicants and their lawyers is that they need not enter into a vulnerability competition in order to have their indirect discrimination claims recognized. In my view, such a competition could only have perverse effects; a race to the bottom is not what Strasbourg case law should be about.
So what’s new?
I think the novelty of this judgment lies in the Court’s reasoning about positive obligations. To my knowledge this is the first time that the Court has talked of “the positive obligations of the State to undo a history of racial segregation in special schools” (par. 127). “[I]n light of the recognised bias in past placement procedures”, the Court says “that the State has specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests.” (par. 116).
So far, the kind of positive obligation that the Court recognized in Roma school segregation cases had been procedural. In Oršuš, for example, the Court spoke of the obligation to put in place “safeguards that would ensure that . . .the State had sufficient regard to [Roma children’s] special needs as members of a disadvantaged group” (Oršuš, par. 183). In the present case, the Court goes a step further by insisting on a substantive positive obligation, namely to “undo a history of racial segregation in special schools”.
This goes quite far. But whether this entails a specific obligation on the State to provide specialized tests for children from a Roma background, and for children from other socially disadvantaged backgrounds, I am still not sure.