Education, education, and more education

Lilla Farkas is staff attorney with the Hungarian Helsinki Committee.

The starting point for this paper is where Lenin – whose words above were constantly quoted to all students in the former Eastern bloc – left it a century ago and where still most debates conclude. Education is the single most important issue to be resolved in a State where the advancement of the impoverished is taken even half-seriously. Education is a right, closely linked to the right to work and a cornerstone of human dignity. Education leads to empowerment, it is “the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities”. [1]

Corresponding to the right to education, there is a State obligation to provide schooling, and where the State fails to provide education, the right to a remedy seems clear. Education is perhaps the only universal public service remaining after the political change in Central and Eastern Europe, available to every resident. Yet litigation has proven only a poor tool to ensure equal access to education, particularly for vulnerable groups such as Roma. Indeed, where progress towards improving opportunities for Roma has been made, as for example in Hungary, sociologists and educators must be praised for having fought their way through legislation with little help from domestic lawyers.

Substandard education or no education?

It is commonly believed that Roma experience pervasive disadvantages in Hungary due to the substandard education available to them. Both international organisations and civil society groups have been calling attention to the unacceptable education for Roma in countries with substantial Roma and Traveller communities. In the CEE, discrimination is often manifested through the placement of a disproportionate number of Roma children in “special schools” for the intellectually disabled. [2] Indeed, every fifth Hungarian Roma student attends a special school or special classes within a mainstream school. [3] In some instances, no pretext is even given for segregating Roma students, but only the pressure of the majority community to exclude Roma from mainstream schools. [4]

Education in Hungary has never been free from discrimination, and Roma were over-represented in special schools well before the transition to democracy. While at present Roma represent approximately five percent of the population, they make up ten percent of primary school students, and the proportion is increasing. [5] The most recent Hungarian study on Roma Children in Primary Schools (“the Study”) estimates that at least every third Roma primary school student attends classes in which the proportion of Roma is over 50 percent. [6] The number of Roma-only classes might be as high as 770, comprising about 9,000 children. [7] Despite parents’ right to choose their children’s school, segregation in housing and social status of families contribute to and amplify these trends. However, social status alone cannot explain the differences observed, and it is clear that racial discrimination must be considered as a possible additional factor.

Although the 1993 Act on Public Education (APE) prohibits racial discrimination in public education, and holds schools liable for damages from the violation of students’ civil rights, [8] actually applying and implementing these provisions in practice was a mission almost impossible. The various inventive methods used to minimise the number of Roma studying together with non-Roma include admission interviews, [9] provision of “catch-up” classes, special education classes in normal primary schools, and physical segregation, such as seating Roma in a group away from non-Roma or scheduling their breaks when non-Roma are in class.

However, it is arguable that parallel to segregation within and outside the comprehensive school system, a substantial number of Roma children are virtually excluded from primary education. The Study found that in 2000, three percent of Romani students were educated at home (magántanuló), compared with just 0.4 percent among non-Roma children. [10] Ten percent of Roma students aged 14 and older were educated at home, which in the majority of cases meant no education at all. As parents must request home schooling, primary schools persuaded many Romani parents to do so. [11] The study found that schools were not equipped to provide for the needs of Roma children of poorer families, mainly those living in urban areas, as teachers lacked the necessary skills and training.

The disproportionately high placement of Roma in special schools has yet to be challenged in Hungary. In a legal context where human rights cases that require little more than strict legal argumentation often fail, submissions crammed with educational and psychological terminology are unlikely to succeed. As demonstrated in the first case to invoke the APE’s liability provision, the Tiszatarján case, defendant schools and education professionals will do their best to throw judges and attorneys into the darkness of semantic complexities and keep them there. [12] Regional experience litigating such issues does not set a promising precedent. For example, the Czech Constitutional Court ruled against Roma applicants in the 1999 Ostrava case, who alleged that their assignment to a special school for people with intellectual disabilities violated their rights under national and international law. [13] Although the case is now before the European Court of Human Rights, [14] previous jurisprudence suggests that applicants whose education was not denied per se will be unlikely to prevail.

Finding solutions

The elements of civil and economic rights come together in the right to education. [15] From a discrimination aspect, when equality of treatment in education is concerned for example, regarding the specific curriculum, it is a civil right. As long as equality of opportunity comes into play, such as questions over how much funding is available for each child, it is an economic right. The role of Government is thus caught between abstaining from interference with the exercise of the right and to acting to ensure that all citizens have an equal opportunity to exercise this right in full.

For litigators, this distinction is significant inasmuch as it is commonly held that civil rights are justiciable, whereas economic rights are programmatic, and cannot be ensured through court action. Nevertheless, beyond the “freedom aspect of the right to education,” rights such as access “to the public institutions existing at a given time” and “the right to primary education” have been found to be justiciable. [16] The latter “would mean that if primary education is compulsory by law, the right of access to public institutions for primary education must be justiciable”. [17] Further, it is arguable that a claim of ethnic discrimination, which is prohibited in all CEE countries would in any case make the right of access justiciable.

Placement in special schools and classes is the most egregious and common form of segregation in Hungary today. Not only does it deprive Romani children of an opportunity for education in public schools on equal terms with the majority; by analogy with a judgement of the US Supreme Court of 50 years ago, it also “generates a feeling of inferiority as to the status [of those segregated] in the community that may affect their hearts and minds in a way unlikely ever to be undone”. [18]

To fight this segregation lawyers have three distinct options to call upon: legislation (not only prohibiting segregation but also establishing administrative supervision, monitoring, and sanctions), litigation, and mediation. If legislation in itself is not enough to end segregation, competent public authorities must ensure compliance with the law. Failing that, conflicts shall be resolved through mediation. Litigation – it is submitted – is the last resort.

For the last decade, Hungarian human rights organisations and public interest lawyers have shied away from engagement in educational legislating and litigation, even in the face of flagrantly discriminatory practices. Research has repeatedly demonstrated that the problems in Hungarian schools, such as the tradition of placing a disproportionately higher percentage of Roma in special schools, are structural in nature. The individual justice model, where a private individual seeks justice in adversarial proceedings from a court of law was thus considered an inadequate means of securing a real remedy. Racial or ethnic discrimination is based on perceived group identity, leading to violations that are systemic and persistent. Even if remedies are provided for one member or segment of the group, others will continue to suffer, if only from the ripple effects of litigation, such as resentment from teachers and other professionals. It is perhaps not surprising then that the only victory so far has been won in relation to a situation wherein Roma students were segregated during the graduation ceremony. [19] As this could not be explained along educational arguments, here, for a change, public health reasons were invoked to justify discrimination but thrown out in court.

Since 1993 Hungarian legislation relating to public education has been rapidly changing, which has not helped to clarify the situation. Amendments have been partially due to changing government policy, which now financially encourages integration as opposed to the previous approach that supported special or supplementary education for Roma. [20] Other amendments focused on the transposition of EU law.

Between September 2003 and January 2004, the APE was the first field-specific law to incorporate concepts drawn from the EU’s Race Equality Directive. [21] To date, practice has not reflected these European standards. On 27 January 2004, the Equal Treatment Act (ETA) [22] came into force, providing uniform definitions for direct and indirect discrimination and to some degree modifying the APE. In general, the ETA defines discrimination in line with the Race Directive – using concepts that are as yet unknown to domestic courts and public administration. It prohibits not only direct and indirect discrimination, but also outlaws segregation, harassment and victimisation. Unless based on a reasonable ground that can be objectively justified, any conduct that separates one racial group from another amounts to segregation. [23]

Thus, legislation is already in place and at present little seems to be missing in this respect, save the establishment of the Equal Treatment Commission, scheduled for 1 January 2005 at the latest, which will hopefully be responsible for assisting victims of discrimination with fact-finding and the support of human rights NGOs with reports on major trends. While strict data protection provisions [24] that do not allow for ethnic data collection may limit the scope of action, this amplifies the importance of the assistance the Commission can provide at the same time.

Against this backdrop the following issues emerge as worth consideration for strategic litigation relating to discrimination in primary education: in admission interviews; regarding home education and the decision-making of education expert panels (szakértői bizottság). The latter play a vital role in transferring students to special schools, as well as to special and catch-up classes in normal schools.

Proving discrimination in the admission process appears relatively straightforward. The filtering out of Roma children during the admission process can be demonstrated, as where children who should by right gain entry to a given primary school can be selected and sent to interviews. Under the present system children do not have to come from the immediate vicinity of a chosen primary school, which allows for a great pool of applicant children from various areas of the country. This would make the testing of the school’s willingness to take Roma students easier. It is assumed that even if the school is prepared to take some of the brightest applicants, their number can be raised to a level that would in the end exceed the school’s threshold of voluntary Roma intake. This situation appears ideal for litigation, because failed applicants will have no connection with the school in the future so not to fear retaliation. Based on the Study, a number of schools could already be identified for test cases. [25]

Children educated at home for an extended period of time stand little chance of reintegrating to their previous class or to school at all. In larger towns, however, specialist services and independent teachers can provide catch-up education. Unjustified assignment to home education should be subject to disciplinary action and criminal investigation, on the grounds of endangering a minor’s mental development, [26] as well as court action for damages and further educational support (under the heading of in integrum restitutio). This approach was taken in the Tiszatarján case with positive results. If the local government is unwilling to cooperate in bringing disciplinary action against the teacher or school director liable for assigning the student to home education, criminal action can still be pursued. The gravity of the problem should be described in a specific study and addressed to the public prosecutor, which in turn could be lobbied to step up its efforts in supervising such investigations.

In light of the number of children assigned to special education, the practice of placing students in such programmes should be continuously monitored. Data on individual expert panels may already exist, and this information should be utilised in selecting the panels to be monitored in the period when pre-school examinations take place. Community links could be made before the examinations and children could be tested by independent experts. Also, parents and children could be contacted immediately after the examination, and re-testing could be done in time to allow for a remedy against an improper decision. [27] This approach requires the most concerted efforts and possibly the highest level of funding of the three options elaborated here. Nonetheless, this early intervention offers the least interference in children’s primary school careers, and brings the least likelihood of retaliation. If children and parents are sought out on the premises of the panels, this method can reach a large number of potential victims before the consequences of discrimination are too great.

In the majority of discriminatory scenarios, the plaintiffs or other Roma students continue to attend the schools charged with discrimination, and regardless of the outcome of court action, most can probably expect some resentment from management and teaching staff. Although victimisation is prohibited in education, [28] only the most optimistic would not fear prompt retaliation from school staff and local governments. Given the lack of expertise in dealing with such situations and the average length of court and administrative procedures, there is nothing in place to prevent local governments from punitive actions such as reducing vital social allowances. [29] Decisions on whether litigation is worth pursuing in spite of the possible consequences should always be made by the affected community, and thus will be dependent upon each individual case.

Mediation, though a new phenomenon in Hungarian civil procedure, appears to be a more fruitful method of resolving discrimination cases than does litigation.. Many existing administrative procedures are based on mediation – including the procedure of the ministerial commissioner for education and consumer protection procedures. In certain communities – such as in Tiszatarján referred to above – mediation could be effective and lead to solutions more inventive than sanctions under the Civil Code, given especially that victims waived their right to compensation. Moreover, experience shows that public authorities are unwilling to pay compensation unless appellate courts order them to do so.

Conclusion

Hungarian legislation now prohibits segregation but the lack of administrative supervision, monitoring and sanctions undermines the impact of this prohibition. Certain administrative bodies, such as the ministerial commissioner for education and the Parliamentary Commissioner for National and Ethnic Minorities have the competence to investigate individual complaints and mediate if disputes arise, but lack the power to sanction, monitor or take legal action against schools violating the law. It seems then that the ETA’s implementation Commission to be established by the end of 2004 will have a significant part to play. However, as its role is statutorily limited to investigation and the bringing of actio popularis – which requires that the case affect a larger but non-identifiable group of plaintiffs, the Commission may not be of great help in scenarios analysed here. [30]

The prohibition of segregation in schools itself did not immediately bring an end to the issue in the US either. Almost half a century since Brown, the “Civil Rights Division of the Department of Justice was involved in more than 200 desegregation cases as well as monitoring the translation into practice of desegregation orders in 500 school districts”. [31] Thus, we are looking at a long process, where all our means must be utilised in the best possible way.

Behind Brown lay the political will to take human rights seriously. Similarly, Hungary’s political commitment to outlaw segregation in education, though indispensable, is not enough. Government action and funding will have to be provided for some time to come, if desegregation is taken even half-seriously.

Footnotes

[1] See, General Comment No. 13, Economic and Social Council, E/C.12/1999/10, 8 December 1999, p.1.

[2] For a handy summary of opinions see, Duncan Wilson, Minority Rights in, to and through Education, A critical evaluation of the first results of the monitoring of the Framework Convention for the Protection of National Minorities, 1998-2003, pp. 39-42 and 54.

[3] Gábor Havas, István Kemény and Ilona Liskó, Cigány gyerekek az általános iskolában, Oktatáskutató Intézet, Új Mandátum Könyvkiadó, Budapest 2002, p. 95. (Hereafter, Roma Children in Primary Schools).

[4] In at least one case, this has been subject to litigation. See Branimir Plese, “Racial Segregation in Croatian Primary Schools: Romani Students Take Legal Action”, Roma Rights, No. 3-4/2002, available at: http://www.errc.org.

[5] Roma Children in Primary Schools, p. 81.

[6] Id.

[7] Roma Children in Primary Schools, p. 81.

[8] Act No. 79 of 1993 on public education, Article 4 sub. 7 and Article 77, sub. 3.

[9] Though testing for primary school enrollment is prohibited, schools nonetheless select candidates on the basis of an informal interview. There are no professional guidelines for such interviews, nor are schools under the obligation to register the results of such interviews.

[10] Roma Children in Primary Schools, pp. 163-168.

[11] Id., p. 164.

[12] See, Legal Defence Bureau for National and Ethnic Minorities (NEKI), White Booklet 2000, pp. 70-72.

[13] See a translation of the Complaint at: http://www.pili.org/library/brief_bank/chech/czech_constit_complaint.htm.

[14] For the application to the ECHR in the Ostrava case see: http://www.pili.org/library/brief_bank/chech/czech_ostrava_strasbourg.htm.

[15] Tomasevski explains the political background. See, Katarina Tomasevski, Education Denied Costs and Remedies, London and New York, Zed Books, 2003, pp. 51-65.

[16] Fons Coomans, The right to education as a human right: an analysis of key aspects, background paper submitted to the Committee on Economic, Social and Cultural Rights, E/C.12/1998/16, pp. 12-13.

[17] Ibid, p. 13.

[18] Brown v. Board of Education, 347 U.S.483 (1954), available at: http://www.nationalcenter.org/brown.html.

[19] In the so-called Tiszavasvári case, see Fundamentum 1999/2, pp. 124-132.

[20] See EU Accession Monitoring Program, Monitoring the EU Accession Process: Minority Protection, Budapest: Open Society Institute, pp. 270-272.

[21] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin.

[22] Act No. 125 of 2003 on equal treatment and the fostering of equal opportunity.

[23] Article 10(2) ETA.

[24] Articles 2(2) and 3(2) of Act No. 63 of 1992 on the protection of personal data and the publicity of public data.

[25] From the database compiled for the study, Roma Children in Primary Schools.

[26] Article 195 of the Penal Code, Act No. 4 of 1978.

[27] Article 14(1) point (l) of Decree 14/1994 of the Ministry of Education on Educational Obligations and Pedagogical Services reads as follows: “The expert panel’s opinion shall contain a warning that if the parent does not accept the opinion, he/she has the right to request the competent notary for a review of the opinion”.

[28] Article 7(1) ETA.

[29] See NEKI’s report on a housing discrimination case, Mrs. Bertalan N, White Booklet 2002, pp. 21-31.

[30] Article 14(1) a-b, and Article 20(1) ETA.

[31] US Department of Justice, Civil Rights Division, Educational Opportunities Section – Overview, text at: http://www.usdoj.gov/crt/edo/overview.htm.