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Jan Husák: Educating everyone together challenges each of us to adapt

7.4.2016 12:02
Jan Husák
Jan Husák

When it comes to the 2007 judgment of the Grand Chamber of the European Court of Human Rights in Strasbourg in the matter of D.H. and Others versus the Czech Republic, contradictory positions are currently being taken on this issue in Czech society, with some publicly condemning this judgment while others defend it. Even though both sides of this dispute predominantly connect it with the obligation to abolish the "special schools" and lay the groundwork for educating everyone together, after familiarizing myself with this unique judgment I see its essential message as being something else, namely, its interpretation of indirect discrimination.

The plaintiffs' basis for an admissible complaint was their claim of discrimination and the essence of the problem is plain to see through the Court's interpretation of what discrimination is in this case. The D.H. complaint was never primarily aimed at abolishing schools for either the mildly or the profoundly disabled.

The judgment itself does not even use any form of the term "abolition" in that respect, nor does it call the "special school" system into question. The amendments to the Schools Act that have recently been adopted in the Czech Republic also do not question special needs education.

Rather, the Grand Chamber's considerations applied to the conditions that lay behind the assignment of the 18 plaintiffs to what were called "special schools" (zvláštní školy) at the time. It was exactly in those conditions that the Grand Chamber found there had been a risk of indirect discrimination.

The Court drew those conclusions based on statistical data that played a key role in demonstrating the indirect discrimination described in the judgment. The Grand Chamber also arrived at the conclusion that, just as in cases concerning employment or service provision, there is no need in the area of education to prove that the state ever even intended to discriminate - discrimination can happen even without express intent.

The state, therefore, was confronted with the dilemma of how to refute the plaintiffs' objections. It needed to make a convincing argument that the plaintiffs' experience was not one of discrimination - and it failed to do so.

From that perspective, it is absolutely appropriate to recall that the foundations of non-discriminatory education were supposed to have been established by law prior to the DH judgment. Had the state actually established non-discriminatory education, it would certainly have enjoyed better conditions under which to defend itself before the Court.

Prior to the judgment, the Czech Republic was legally bound to uphold and fulfill the anti-discrimination protections that were to be of such pivotal significance in this matter. For example, the UN Committee for the Elimination of Racial Discrimination, in its conclusions dated 30 March 1998, after assessing the Czech Republic's report on this and other matters, stated that "the disproportionate number of Romani children assigned to special schools represents de facto racial segregation".

We can follow similar criticisms of this situation in the Committee of Regions' Standpoint on the European Parliament Resolution on Protection of Minorities and Anti-Discrimination Policies in an Enlarged Europe (2006/c 229/09) and in the EP's resolution on social inclusion in the new Member States dated 9 June 2005 (2004/2210(INI)). It is not possible, therefore, to pretend that the obligation not to discriminate did not exist for the Czech Republic prior to D.H.

It is apparent that international codes of law have been broken here in the case of education - both before and after the 2007 judgment. Non-discriminatory education has, therefore, become a front-burner obligation for the state.

The Ministry of Education is aware of that, despite the strong opposition being expressed to such education. The D.H. judgment is also a warning sign to all who attempt to circumvent either the domestic or the EU laws that apply to discrimination.

The judgment should be considered a warning to those state bodies (such as the Regional Administrations) that are now trying to avoid its binding recommendations. The DH judgment cannot just be simplistically linked to the closure of schools, and certainly not to the alleged harmfulness of educating everyone together.

Rather, the judgment implies that conditions must change so as to guarantee greater protection against practices meeting the definition of indirect discrimination, i.e., everyone's right to non-discriminatory education together with others must be prioritized. In that context is logical to assume, with a certain probability, that there will always be some criticism of educating everyone together here, perhaps because people are more used to criticizing than they are to giving praise.

I admit that I, too, sometimes allow myself to fall into the role of a pessimist about this issue due to various concerns, but my concerns aren't about the future as much as they are about the present. At this exact moment, many prognosticators are predicting a future that is designed in the spirit of a self-fulfilling prophecy.

It is precisely at this moment that concerns about the inevitable "failure" of educating everyone together are being revived. If today's critics are defining children's "failure" as something that actually exists, then they are making it all the more likely that the children will indeed "fail" in future.

I may be mistaken, but I believe educating everyone together mainly poses a challenge to each of us to change something about ourselves first and foremost. If we are not brave enough to make such changes, then we will probably never be prepared to grasp the true aim and purpose of educating everybody together.

From this perspective, the concern expressed by those resistant to change - namely, that the system is unprepared for this new concept of education - is absolutely superfluous. Nobody will ever be more beneficial to education, no one will ever give children more of a chance in education, than we, ourselves.

Jan Husák, translated by Gwendolyn Albert
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Evropský soud pro lidská práva, praktické školy, speciální školy, Diskriminace, Vzdělávání, Vzpomínková akce



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