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Standing for equality

U.S. lawyer wins groundbreaking discrimination case for Romany students

By Kimberly Ashton
Staff Writer, The Prague Post
November 21st, 2007 issue

KURT VINION/THE PRAGUE POST

James Goldston took the case of D.H. and Others v. the Czech Republic to the European Court of Human Rights.

When human rights activists started investigating complaints in the late 1990s that Romany, or Gypsy, students were being discriminated against in Czech schools, they made a startling find: In Ostrava, a Romany child was 27 times more likely to be placed in a special school for children with learning disabilities than was a non-Romany child.

“It’s indisputable that race was playing a factor,” says U.S. lawyer James Goldston, who at the time was legal director for the European Roma Rights Centre, based in Budapest.

Goldston helped Czech lawyer David Strupek take the Czech government to court, alleging discrimination, on behalf of 18 Romany children who were placed in remedial schools. He argued the case unsuccessfully before domestic courts in 1999 and the following year Goldston took D.H. and Others v. the Czech Republic to the European Court of Human Rights, in Strasbourg, France.

On Nov. 13, the court ruled by a vote of 13-4 that the Czech Republic was in violation of Article 14 of the European Convention, which prohibits discrimination.

Goldston, now the executive director of the New York-based Open Society Justice Initiative, was in Prague the day after the court announced its decision. He sat down with The Prague Post to talk about a ruling he calls “an enormous opportunity for civil society in the Czech Republic.”

The Prague Post: What is the significance of this case, particularly in regard to European human rights law?

James Goldston: The significance is huge. First of all, it’s the first time the court has expressly looked at a pattern of discrimination that is taking place across a country. Previously it had addressed individual acts of discrimination.

And the court went out of its way to note that the Czech Republic is not alone; it clearly made reference to what it called discriminatory barriers to education for Romany children in a number of other European countries.

Although the decision is binding only for the Czech Republic as a legal matter, it clearly has great significance as a whole.

[Also] the court for the first time has recognized by name the principle of indirect discrimination, whereby a difference in treatment takes the form of prejudicial effects of a policy or measure even though it’s couched in neutral terms.

The court [also] clarified that where discriminatory impact is shown it matters not that there is no evidence of discrimination; it may well be that the relevant authorities never intended to harm or even discriminate against Roma.

TPP: It sounds like this is possibly the most significant decision regarding European Roma.

JG: I think that’s probably right. There have been several decisions in recent years. I think this is the culmination of a trend which clearly has provided increased protection for Roma on paper and which has expanded the court’s purview over the treatment of Roma as a particular population.

TPP: What were the criteria used to place these children in these schools if not outright racism?

JG: Essentially it was up to teachers in many instances to determine which children should be tested. [The children] were administered one of a number of tests, and in fact the court raised serious questions about both the validity of the tests themselves and the manner in which they had been applied to the Roma population.

TPP: Were there Romany children who scored well on these tests but were still placed in these remedial schools?

JG: The government had long admitted that more than half of the Roma population were assigned to special schools and that a number of them — it didn’t specify how many — scored average or above-average on these intelligence tests and still were assigned to special schools. Now, the government argued that one of the reasons this happened was because parents consented to this and in some cases requested this. The court found that that reliance on purported parental consent to justify incorrect placements of persons was simply inappropriate for two reasons: One, the consent was given without any information being provided to the parents about what the consequences were, and, secondly, the court held that the right not to be discriminated against was so fundamental that you simply are not able to waive it.

TPP: So how would Romany parents go about removing their children from one of these schools today?

JG: At the time the case was brought the law did provide, in theory, for review and monitoring of all children who are placed in special schools to determine whether the placement continued to be appropriate. In practice, we found that that was simply an inoperative provision.

I think it was possible for parents to raise questions and to request transfers. But there were a variety of reasons why parents may not have done so, including the fact that they had not been made aware of what it would mean for their child to stay in the special school system, including the fact that there were documented incidents of hostility or harassment on the part of non-Roma toward Roma in schools.

TPP: How do you think this ruling is going to change life for the Roma in the Czech Republic in the immediate future, over the next five years, over the next 25 years, etc.?

JG: I think it’s a very open question. The ruling provides enormous potential. There are a number of possibilities of what is going to happen now. One possibility is nothing. There are rulings all the time that governments don’t respond to. My hope is that both the government and civil society groups will take the ruling and use it as a tool for the design of a comprehensive policy of anti-discrimination.

TPP: Have you received any resistance from local courts or society regarding this case?

JG: Enormous. I mean, when we first talked about the case, people laughed at us and said it was just a preposterous thing to suggest that the courts had anything to do with this; that it was a social problem, or a problem of the Roma, but certainly not of law. There was enormous resistance to the notion that this was a question of human rights.

But I think the fact that the European court has now placed its imprimatur on the argument will affect the terms of debate here and I hope elsewhere.

TPP: You said that the decision is binding only to the Czech Republic — does that mean Romany parents in other European countries will have to take their cases to court country by country?

JG: I would hope not. As a technical matter, the binding nature of the decision is restricted to the Czech Republic, but, as a practical matter, this is the grand chamber; it is the highest authority within the European court. I think it fair to say that it expects, and governments would be well-advised, to heed the guidance that it is providing.

Kimberly Ashton can be reached at kashton@praguepost.com

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