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August 17, 2018
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German court says immigrant Romani pupil incorrectly assigned to "special school" deserves compensation

21.7.2018 6:57
Nenad M., the Romani man originally from Serbia who in 2018 successfully sued in Germany because educators incorrectly recommended him for enrollment into education for the mentally disabled.
Nenad M., the Romani man originally from Serbia who in 2018 successfully sued in Germany because educators incorrectly recommended him for enrollment into education for the mentally disabled.

News server Spiegel Online reports that a court in Cologne, Germany has decided that a 21-year-old plaintiff named Nenad M., who is a Romani man originally from Serbia, deserves compensation for the fact that he was incorrectly recommended to attend a "special school" for mentally disabled children for 11 years. Nenad M. was first recommended for enrolment into "special school" in Bavaria at the age of seven on the basis of IQ tests that were administered in the German language.

At that time Nenad M. had been living with his family in Germany only briefly. His mother tongues were Romanes and Serbian.

When the family then moved from Bavaria to North Rhine-Westphalia, Nenad M. was reassigned to a school for children with mental disabilities there without his intellectual capacities being reassessed. The state of North Rhine-Westphalia must now pay compensation to Nenad M. for their procedural error.

Judges based their ruling on the assumption that if Nenad M. had been allowed to attend a mainstream school he would have completed all of the basic education requirements by the age of 16. By assigning him to "special school" he was denied that opportunity, which has correspondingly had consequences detrimental to his professional prospects.

The state of North Rhine-Westphalia was found to have "violated its obligations" and the judges said that "During the course of the annual review of the needs for support, the school should have noted that the applicant did not need any support in the area of his intellectual development." The assessment performed by the primary school in Bavaria should no longer have been enough to qualify Nenad M. for enrollment into a "special school" in North Rhine-Westphalia and the decision by the school authority to recommend his enrollment there was not sufficiently grounded in evidence, according to the court.

Despite the fact that Nenad M. and several of his instructors asked the management of the "special school" more than once to reassign him to mainstream education, they only succeeded after the intervention of the Mittendrin association, which advocates for inclusive education. Nenad M. therefore received, after 11 years at "special school", the opportunity to transfer to a mainstream school, which he completed in 2016 with an average grade of "1.6" (where "1" in the German system is the highest grade).

During the first hearing in the spring of 2017 the court was still skeptical about "whether the plaintiff will manage to prove that had he received the appropriate support from the school he would have completed his basic education in any event by the age of 16." The court's ruling has now completely swept those doubts from the table.

The Mittendrin association welcomed the verdict. "Nenad's story is not an isolated case," said the director of the association, Eva-Maria Thoms.

"We know of others who have had similar experiences. For that reason it is necessary for the 'special schools' to be investigated and other cases discovered," she said.

"It would not be responsible to abandon such pupils to their fates," Thoms believes. To calculate the amount of compensation he is seeking, Nenad M. based his claim on the assumption that if the schools had assessed him properly, he would have completed his compulsory (mainstream) schooling by the age of 16 and then been able to work.

The loss of income incurred as a consequence of Nenad M. completing his compulsory school attendance later in life was calculated by him at almost EUR 40 000. He has additionally requested compensation in the amount of EUR 20 000 for the psychological damage that he has suffered as a result of this experience, especially post-traumatic stress.

The court's decision did not establish the amount of damages to be compensated. Once the judgment takes effect, the amount of compensation will be the subject of a separate hearing, the court said.

For the decision to take effect, North Rhine-Westphalia will now have to either give up its opportunity to appeal the judgment or a higher-instance court will have to pronounce its own ruling. "At that point it will be necessary to assess what the specific psychological consequences of the plaintiff's incorrect assignment to that school were," a spokesperson for the court said.

Eva Zdařilová, translated by Gwendolyn Albert
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