Horváth and Kiss Judgment on Roma Education

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

by Renáta Uitz

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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.