Friday 22 February 2013

Horváth and Kiss Judgment on Roma Education

Recently, the European Court issued another judgment on education for Roma: Horváth and Kiss v. Hungary. The judgment, amongst others, established that states need to address structural disadvantages caused by past discrimination through positive measures. It is my great pleasure to introduce a guest post by professor Renáta Uitz, professor of comparative constitutional law at Central European University in Budapest, with comments on this judgment:

Misdiagnosis of Roma children in Hungarian public education is found to amount to discrimination 
by Renáta Uitz

The segregation of Roma children in public education continues to be a major failure of the European human rights regime. In 2007 in D.H. v. the Czech Republic (also known as the Ostrava case) the ECtHR established the basic premises of challenging segregation of Roma children in public education. Importantly, the ECtHR agreed to accept statistical evidence to ascertain a violation, to reverse the burden of proof and also insisted on the burden of justification being as strict as possible for discrimination based on nationality or ethnicity. Despite being a seminal decision, however, D.H. v the Czech Republic is still awaiting its enforcement.

The Chamber judgment in Horváth and Kiss v Hungary reinforces the line of jurisprudence marked by D.H. and subsequent decisions.  It confirms the admissibility of statistical evidence for establishing prima facie discrimination based on ethnicity (para 107) and the reversal of the burden of proof (para 108). It also reaffirms that in a public education setting it is not necessary to prove discriminatory intent for indirect discrimination (para 106). Importantly, the Court established that in the context of public education, in a case where a group of pupils has suffered past discrimination with continuing effects, structural disadvantage needs to be addressed by positive measures. The Court insisted on “particularly stringent” positive obligations due to the actual history of discrimination in the case (para 104). It is in this latter respect that the new Hungarian cases added significant insight to the existing jurisprudence.

Applicants in the Hungarian case challenged the misdiagnosis of Roma children as mentally disabled, and their subsequent placement in segregated special schools. The curriculum in these special schools is more rudimentary than in ordinary public schools and educational opportunities for graduates of special schools are limited. Although placement to special schools is based on complex testing, the overall pattern still was that Roma children have been considerably overrepresented in special schools, compared to the proportion of Roma in the general population. The special school in the applicants’ town had been 40-50 per cent Roma, while Roma children amounted to 8.7 per cent of the student body in the same town (see para 4).

The case before the ECtHR arose from a strategic litigation effort by Roma rights NGOs, the Chance for Children Foundation (CFCF) and the European Roma Rights Center. In order to litigate the underlying claims across the Hungarian judicial system, CFCF first of all had to establish the misdiagnosis of the applicants as students with mental disabilities. To this effect counsel for the applicants did not only furnish evidence on the racial bias implicit in the various tests used for placement in special schools, they also presented the results of the alternative testing of the applicants at a summer camp which yielded significantly higher test scores than those on the same tests which were conducted by government experts before (paras 31-34). The summer camp was funded by the Roma Education Fund, which later also submitted an amicus curiae brief in the domestic proceedings.

These findings did not come as a surprise. The misdiagnosis of Roma children, who were placed the special schools for children with learning difficulties as a result of ethnic bias in the testing is a systemic and lasting problem in Hungary, as has been clearly exposed on the European level before. Unlike in many other countries in the region, in Hungary reliable data on the misdiagnosis of Roma children were available since the 1970’s. CFCF heavily relied on these data during the entire procedure. The findings of extensive European monitoring in several reports and recommendations on Hungary, as identified by the Advisory Committee on the Framework Convention for the Protection of National Minorities, the CoE Commissioner for Human Rights and ECRI’s regular monitoring, were consulted by the ECtHR in the case.

The domestic procedure was complicated by numerous changes in the legal regulation of public education and also in the testing regiment itself. These changes were triggered in parts by the government’s alleged own efforts to improve testing. Also, the applicable Hungarian legal regulation was amended with the transposition of EU equal treatment rules alongside the introduction of a comprehensive equal treatment act and the establishment of a national equal treatment authority. The resulting procedure was rather complex with three respondents (the panel of experts misdiagnosing the applicants, the special school which the applicants attended and the county council which was responsible under the law for the operation of the panel of experts and the specials school) being brought to court, on appeal and also on judicial review in a discrimination suit with claims for damages.

The applicants were not completely unsuccessful with their claims before domestic court, a factor which prompted a very close inquiry into the exact scope of their claim before the ECtHR during the preliminary analysis. After all, the panel of experts was found to act in a discriminatory fashion already by the first instance court for failing to assess the applicants in an individualized manner, and in the review proceedings the Supreme Court found that the county council had to pay damages for its failure to supervise the legality of the operation of the panel of experts. At the same time, the Supreme Court found no equal treatment violation by the special school and the county council, noting, that the failure of the state to remedy a systemic violation of human rights which resulted from the absence of a professional protocol for testing was a problem to be remedied by the ECtHR or by the Hungarian Supreme Court. It was in respect to this discrimination challenge contesting a systemic violation that the ECtHR found the case admissible (para 86). The ECtHR, however, refused to address the part of the petition which challenged the unsuitability of the tests used, as it did not find domestic remedies exhausted in this respect (para 87). As a result the ECtHR examined whether committing the applicants to otherwise segregated special schools for students with mental disability due to their Roma origin amounted to indirect discrimination with regard to the applicants’ right to education (Article 2 of Protocol no. 1 in conjunctions with Article 14).

Indeed, the most significant novelty the Horváth and Kiss judgment brings is the Court’s analysis on the nature and extent of the state’s positive obligation to prevent a well-established, lasting and systemic violation of human rights in the context of education. The Court said explicitly that “the State has specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests” (para 116). It is for the state to demonstrate that the tests used as well as their application in practice is capable of “fairly and objectively” determining the learning abilities of the applicants (para 117). In the application of this standard, it turned out to be rather demanding.

Importantly, before the ECtHR the government did not dispute the racial bias in at least some of the tests used, instead, it argued that “cultural bias could be compensated” by alternative examination (paras 95 and 120). The government, nonetheless, insisted that the over-representation of Roma children in the special schools results from social deprivation, a factor which is outside the scope of the right to education (para 96). Responding to the government’s points, the ECtHR found that exactly for these reasons there was at least a “danger” that the tests were culturally biased, therefore, the Court was looking for “special safeguards” to prevent misdiagnosis (para 121), which it did not find. The lack of safeguards was established with the ECtHR relying on the facts as established by the domestic courts, taking into account the rapidly changing legal environment which was also pointed out by the national courts.

Note that while the ECtHR adopted the language of the government’s explanation, classifying racial bias as cultural bias, it did not follow the government all the way to accepting the social deprivation argument as an explanation for the disproportionately high number of Roma children in special schools in Hungary. Indeed, the Court relying also on reports from European monitoring bodies revisited the impact of the dubious concept of “familiar disability” used to justify the misdiagnosis of Roma children (para 115). This is a most welcome development, as the ECtHR appears to be willing to come to an informed assessment of developments on the ground, taking advantage of a wide range of sources for its analysis. In addition to the Court’s openness to statistical evidence in order to establish indirect discrimination on the basis of ethnicity, it is reassuring to see that the Court is open to listen and learn from the findings of extensive European human rights monitoring and reporting on questions which are too complex (and costly) for applicants to explore on their own in individual cases. The openness of the ECtHR to accept a wider range of evidence, and piece together a truly European account of a structural and systemic violation is all the more significant, as similar data on ethnic origin are not available in many other countries of the affected region.

In closing, it is worth noting that –as also signaled by the ECtHR– special schools for mentally disabled and developmentally challenged children present a human rights problem in themselves. The Hungarian special school regime is particularly problematic, as it caters to children with mental disabilities, and also with other learning difficulties. Departing from the WHO value of IQ 70, pupils at IQ 86 or below were placed in these special schools. In this regime pupils with IQ 70 to 85 were understood to have a borderline intellect, and as such they were seen to have serious and persistent learning impairments. While the government requested in 2004 to stop the transfer of children with a score above IQ 70 to special schools, in 2007 the National Expert and Rehabilitation Committee still insisted on the borderline qualities of these children. In addition, as the Court also noted, in 2007/08 only 0.4-0.6 per cent of children with special needs were integrated in Hungary in secondary education (para 8), i.e. the overwhelming majority of special schools segregate their pupils from mainstream public education.

The ECtHR accepted the government’s position that it maintained special schools  “to find a solution of children with special education needs” (para 113). At the same time, the Court expressed serious concerns about the existing regime, echoing the concerns of other European institutions (para 113).  In light of this background, it is not a surprise that the Court used the closing paragraphs of the judgment as an opportunity to emphasize (reinforcing its decisions in Kiss v Hungary) that due to the special vulnerability of persons with mental disabilities the limitation of their fundamental rights has to be justified by very weighty reasons, and has to be subject to strict scrutiny (Kiss, paras 42 and 44, reaffirmed at Horvath and Kiss, para 128). This language of clear encouragement from the Court should be read by disability advocates as a sign that the ECtHR may be ready to hear from them on the segregation of children with learning difficulties in several European countries.
See also other comments on the case here.