Challenging discrimination at the expense of promoting equality
Published: 14 February 2013
In Hungary, 2 Roma children were sent to special school
The European court said it was wrong
We think that the European court should make clear
Every child has the right to learn in regular schools
This is true for Roma children.
This is also true for children with intellectual disabilities.
This statement aims to contribute to an informed public debate about social equality and the means to achieve that goal. Seven years after all the governments in the world agreed to the adoption of the UN Convention on the Rights of Persons with Disabilities it is high time that NGOs carrying out advocacy start to advance the right to education for all children. This paper reflects critically on advocacy advancing only the interests of one specific group of children rather than challenging the systemic exclusion of any group of children from mainstream education.
A victory in the narrowest of senses
The European Court of Human Rights recently issued a judgment in the case of Horváth and Kiss v. Hungary. The case concerned two Roma boys who were misdiagnosed as having a disability and as a result of the diagnosis were educated in the segregated ‘special’ education system. The judgment can be found here. The children were represented by the European Roma Rights Centre, an international NGO, and the Hungarian NGO the Chance for Children Foundation. Their joint press release of 29 January 2013 can be found here.
The Horváth and Kiss judgment is a victory only in the narrowest of senses, because in focusing on reversing a pattern of ethnicity-based discrimination, it encourages the Hungarian government to embed a pattern of discrimination on the basis of disability.
We abhor racism in all its guises. There is much evidence that people from minority ethnic groups are disproportionately labelled with learning difficulties or mental health conditions largely for cultural reasons. Roma people continue to suffer systemic institutional discrimination and face rising extremism in Hungary and other countries, and that a multi-sectoral approach needs to be taken to ensure that the rights of Roma are protected, respected and fulfilled on an equal basis with others.
However, the present judgement creates the impression that a segregated special education system is justifiable or even adequate for children with a disability, a system which clearly violates provisions of the CRPD. We have thus sent a letter to the Hungarian Minister of Education reminding the Minister of Education of his duty under international human rights law to provide inclusive education to all children, not just Roma children without disabilities.
The logical result of the case is also that tests aiming to determine a disability of a child will become more culturally-sensitive and somehow more scientific, but they will still exist. After all, where has this ruling left Roma children and non-Roma children who are correctly diagnosed as having a disability?
A focus on improving testing, in the context where it is used to determine educational placement rather than to design the necessary individualised educational services for a student, embeds a segregated system in which some children are consigned to a life of social exclusion.
Case summary of Horvath and Kiss v. Hungary
When István Horváth was six years old an “expert panel” carried out an assessment of his verbal, counting, cognitive and other skills. As a result, he was diagnosed with “mild mental disabilities” and on this basis was sent to a remedial school. As a result of attending segregated education he was unable to follow a course to become a dance teacher and instead, he received special vocational training to become a baker. András Kiss was diagnosed at an early age on the basis of various IQ and other tests, and sent to a remedial school. He continued his studies in a mainstream secondary vocational school which did not offer regular examinations, and was unable to pursue his ambition to become a car mechanic.
The applicants, both of Roma origin, argued that the diagnostic system was flawed as it did not take into account the social or cultural background of Roma children. They argued that the tests were culturally-biased and led to the misdiagnosis of Roma children and their placement into special schools. Hungary’s special schools contain a disproportionately high number of Roma children compared to the general population. The European Court referenced data from 1993 which the Court stated is the last year when ethnic data were collected in public education in Hungary. This data indicated that at least 42% of children in special schools were of Roma origin, though they represented only 8.22% of Hungary’s pupils.
The applicants’ lawyers argued 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” (paragraph 91 of the judgment). The government explained that the high numbers of Roma children in special education could be “explained by their disproportionate representation in the group deprived of the beneficial effects of modernisation on the mental development of children” (paragraph 96 of the judgment).
The European Court of Human Rights held that discrimination on the basis of ethnicity had been established because the law at the time “had a disproportionately prejudicial effect on the Roma community”, and the government had “failed to prove that it has provided the guarantees needed to avoid the misdiagnosis and misplacement of the Roma applicants” (paragraph 128 of the judgment). It found that the applicants had suffered a violation of their right to education (as set out in Article 2 to Protocol No. 1 to the European Convention on Human Rights) read in conjunction with their right to non-discrimination (Article 14 of the same Convention).
What is inclusive education?
In 1994 the global community agreed that regular schools with an inclusive orientation are “the most effective means of combating discriminatory attitudes, building an inclusive society and achieving education for all.” (UNESCO 1994). UNESCO defines inclusive education as “a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education. It involves changes and modi?cations in content, approaches, structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children.” (UNESCO 2005)
Article 24 of the UN Convention on the Rights of Persons with Disabilities (CRPD) sets out the obligation “to ensure an inclusive education system at all levels and lifelong learning directed to… [t]he full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity…”.
The UN Committee on the Rights of Persons with Disabilities examined Hungary’s compliance with the CRPD in October 2012. It called upon the Hungarian government “to allocate sufficient resources for the development of an inclusive education system for children with disabilities” and “provide students with disabilities with the required support within the general education system” (paragraph 41). Furthermore, the Committee urged the government; “to develop programmes to ensure that Roma children with disabilities are included in mainstream education programmes” (paragraph 42).
Research from around the world has proven that segregated education results in higher costs associated with a parallel segregated system; poorer educational and long-term social and economic outcomes for children with disabilities placed in segregated systems compared to children with disabilities included in regular education; and systemically-produced marginalisation because non-disabled children do not evolve empathy, understanding and respect for diversity to the same extent when learning alongside their disabled peers in inclusive settings.
Actions which advance rights
We call on NGOs to conduct human rights advocacy and litigation in ways which contribute to a public understanding of the indivisibility of human rights. All NGOs concerned about the right to education should proactively demand and motivate governments to end policies of segregation and to transform education systems to the inclusive and common learning environments which all children and learners can enjoy as a matter of right.
Advocacy – Policy analysis should be conducted in an intersectoral way, rather than advancing the rights of some at the expense of others. For example, in November 2012, Amnesty International and the European Roma Rights Centre produced this report about education of Roma children in the Czech Republic. Although in one recommendation the report calls for whole-scale desegregation of special schools, nowhere in its 29-pages does the report cite the UN Convention on the Rights of Persons with Disabilities (ratified by the Czech Republic in 2009), let alone utilise the Convention as an analytical framework by which States must provide an inclusive education system to all children.
Litigation – Challenging non-discrimination on the basis of ethnicity without an intersectoral analysis clouds the big picture. The DH v. Czech Republic case, decided by the Grand Chamber of the European Court of Human Rights in 2007, is a precursor to the Horváth and Kiss case. It was argued along ethnicity lines, a strategic mistake because the approach consigns children with disabilities to segregated education. We encourage lawyers to cease and resist pursuing a race discrimination approach of the type adopted in these cases which focuses solely on people whom those lawyers have judged to have been “wrongly” segregated.
Instead, future cases should challenge the core of the problem, which is the denial of the right to a good quality inclusive education – irrespective of the child’s nationality, ethnicity, talent, IQ or diagnostic label. Test cases can be litigated in a way which provides the applicants with remedies while advancing the rights of other children: we would like to explore such litigation strategies with interested parties on 28 May.
“The Salamanca Statement on Principles, Policy and Practice in Special Needs Education”, UNESCO, 1994, http://www.unesco.org/education/pdf/SALAMA_E.PDF
“Guidelines for Inclusion: Ensuring Access to Education for All”, UNESCO, 2005, http://unesdoc.unesco.org/images/0014/001402/140224e.pdf
“Better Education for All: When We’re Included Too. A Global Report: People with an Intellectual Disability and their Families Speak out on Education for All, Disability and Inclusive Education”, Inclusion International, 2011 http://www.inclusion-international.org/resources/better-education-for-all-when-we-are-included-too/
UN Committee on the Rights of Persons with Disabilities, concluding observations with respect to Hungary, 22 October 2012, CRPD/C/HUN/CO/1