Court Action Against Segregated Education in Bulgaria: A Legal Effort to Win Roma Access to Equality
Margarita Ilieva and Daniela Mihaylova1
Background on Segregated Education for Roma in Bulgaria
In Central and Eastern Europe today, segregated education is the largest obstacle for Roma in their access to fundamental rights. In itself, segregated education represents illegal discrimination. Inherently unjust, its impact on human dignity and identity is destructive. Its devastating effects on rights enjoyment and participation are overarching. The stamp of segregated education put on young individuals at the very threshold of their initiation as members of society engraves upon their tender identities inequality, marginality and isolation. With time, this corrosive imprint, etched ever deeper at each point of passage through social life, ever more painfully reiterated by each oppressive contact with the dominant mainstream society, becomes the powerful formant of a socially dysfunctional mentality of inferiority and isolation, tightly locking the potential of individuals to own and express themselves, and to participate. This crippling mentality operates to disadvantage entire communities, limiting their present and conditioning their future. In Bulgaria, as in much of the rest of Europe, it has long been grinding down the Roma.
Due to various factors, key among which are racist prejudice and discrimination, in Bulgaria, Romani children are educated in separate educational establishments. Previous governments have a history of directly isolationist policies targeting Roma, in both residential and educational terms, as well as policies that have indirectly resulted in the educational segregation of Roma. An example of the latter has been the policy of compulsory assignment, during the communist period, of children to schools based within their respective residential areas. Assignment on a territorial basis has resulted in isolation of Romani students in separate schools, since Roma tend to live in isolated predominantly Romani settlements, or ghettoes. Roma residential segregation is, again, due to a combination of factors, key among which are discriminatory official policies aimed at isolating Roma from the rest of society, as well as self-protective tendencies within vulnerable Romani communities themselves to wall off a hostile outer environment.
The perpetuation of segregation of Romani education today is the result of a lack of effective governmental policy to end it. In addition, discriminatory conduct by mainstream school managers persists, with direct refusals to enroll Romani children being regularly documented.
Separate educational establishments include schools based in segregated Romani ghettoes, where Romani children are the only, or the predominant, ethnic group. Segregated Romani ghetto schools are the rule. Less often, segregated facilities also include exclusively or predominantly Romani classes within regular non-Romani schools. Today, while in theory following official national curricula and applying official national standards of academic achievement, those segregated schools and classes offer, in practice, education of an enormously inferior standard. There, the faculty is less qualified and less motivated. Teachers' expectations, based on racist perceptions of a lack of interest in education on the part of Roma, are lesser. Accordingly, what teachers offer their Romani students is much less compared to what non-Romani students are offered. Teachers are not trained to work with children whose mother tongue is not Bulgarian, nor are they sensitised to multiculturalism. Often, teachers and managers subject their Romani students to racist harassment. The material conditions are dramatically worse, heating, electricity and sanitation being deficient, classrooms being overcrowded and equipment and teaching materials lacking. Academic achievement is significantly lower in segregated schools as compared to mixed and non-Roma schools, illiterate fourth-graders being commonplace. As a result, Roma segregated school graduates are at a disproportionate, overwhelming competitive disadvantage in the labour market, and, for all practical purposes, the pursuit of higher education is virtually beyond their horizons. Drop out rates are dramatically higher, with only 5 percent standing a chance to graduate.2
The present plight of the segregated schools is the legacy of a history of official marginalisation of those schools during the communist period. Then, the official goal of education at the segregated schools in the Romani ghettos was the achievement of elementary literacy complemented by menial work skills. Training in such skills formed a significant part of the curricula in those schools, and production tasks involving the manufacture of set quantities of consumer items were assigned. In those schools, the share of teachers lacking the requisite qualifications was significantly higher than in regular schools. Oversight by authorities in charge of managing public education was minimal and inconsequential.3
In sum, not only are Roma-only schools de facto segregated, per se constituting egregious discrimination, those schools are further discriminatory on an additional basis of being unequal to regular schools concerning all aspects of the education process and material conditions.
The Lawsuit against Racial Segregation of Roma in Education
In May of 2003, 28 Roma students took strategic court action sponsored by the European Roma Rights Center and the Sofia-based Romani non-governmental organisation Romani Baht Foundation to challenge segregated Romani education in Bulgaria. The suits target the segregated establishment of 75th Municipal School in Sofia city, where Roma students are the only ethnic group educated. Their respondents are the Ministry of Education, the Sofia Municipality and the school. They allege racial segregation and additional racial discrimination as represented in an inferior standard of education provided. The law they invoke includes constitutional law, incorporated international law and domestic statutes and secondary legislation. The redress they seek is a finding of segregation and discrimination and compensation of non-pecuniary damages in symbolic amounts, as well as court-ordered termination of segregation and of racially discriminatory inferiority of the education provided in the respondent school.
Our clients allege that the segregation they were subjected to in the all-Romani school is a breach of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, which binds states parties to prevent and eradicate all practices of racial segregation within their jurisdiction. They invoke General Recommendation XIX (1995) of the Committee on the Elimination of Racial Discrimination, construing this duty as including an obligation on the state to eradicate the consequences of racial segregation practices undertaken or tolerated by previous governments or imposed by unofficial agents. Our clients further invoke Article 1(1.c) of the UNESCO Convention against Discrimination in Education, which specifically forbids the purpose or effect of establishing or maintaining separate educational systems or institutions for individuals or groups. They point out that, while the Convention allows separate establishments along gender or religious lines, it allows no racially separate education.
Our clients further claim that, in breach of anti-discrimination guarantees, they have been subjected to unequal education, in both academic and in material terms. They allege that the education provided for them at the respondent school is inferior due to a number of factors. First, the quality of education is severely reduced due to the excessive number of classes in a grade, and the excessive number of students per class. They assert that these numbers are in breach of legal norms adopted by the Bulgarian Ministry of Education. While the legislation stipulates a maximum of 22 students per class in the first four grades, in the 75th School, the average for the first grade is 34 students per class, and those for the second, third and fourth grades are, respectively, 29, 32, and 36 students per class. With respect to higher grades, while the law stipulates a maximum of 26 students per class for grades 5 to 10, the average in the 75th School for these grades is, respectively, 36, 38, 29, 34, 41 and 39 students per class.
Our clients allege that, not only are these excessive student numbers in formal breach of legislation stipulating the maximum numbers for standard education, but, even more importantly, enrollment by the 75th School of such excessive numbers of students in breach of the law results in perpetuation of Romani educational segregation. If the school management had abided by the law concerning the maximum admissible numbers and, accordingly, refused to enroll applicants exceeding those numbers, those applicant Roma students would have, by necessity, been enrolled in other, non-Roma schools in the vicinity, and would have thus been integrated into mainstream education. Indeed, taking into account the fact that the formal breach of the legislation on the maximum numbers is so blunt; that other, non-Romani schools do not breach this legislation; that in no non-Romani school do student numbers exceed legal maximums; and that the effect of such breach is to contain Romani students within the segregated Roma-only school, it can be claimed that the 75th School's management intentionally enrolls Romani students in excessive numbers in order to preserve the segregated patterns of education. Further, there is a lack of oversight and enforcement of the law by the Ministry of Education and the local government. Those respondent bodies have not sanctioned the 75th Schools' management for blatantly and persistently disregarding legal standards on student numbers, in effect, condoning and implicitly authorising both such disregard and its segregationist and discriminatory effects.
Further, the claimants assert that the level of educational achievement in the 75th School is very inferior to that of integrated schools. They substantiate this assertion by officially collected data. Upon request by the ERRC and the Bulgarian counterparts, the Sofia Regional Inspectorate of the Ministry of Education conducted comparative testing in mathematics and Bulgarian language in nine schools in Sofia - three Roma-only schools, including 75th School; three mixed schools; and three Bulgarian-only schools. Results by students in Roma-only schools were dramatically lower than results by students in mixed and Bulgarian-only schools. In mathematics, as few as three out of 18 students attending a Roma-only school made no mistake. By contrast, 18 out of 19 Romani students attending integrated schools made no mistake, as did 27 out of 28 Bulgarian students attending Bulgarian-only schools. In the 75th School, as few as 16 out of 121 Romani students made no mistake. Results in Bulgarian language tests were identical. Graduates of the 75th School were documented to be unable to write down a basic sentence in Bulgarian.
Our clients claim the inferior standard of education they receive at the 75th School is further due to lower teacher expectations and teachers lacking qualifications to work in a multicultural environment. They assert that the lack of assistance programmes for bilingual children whose first language is Romani rather than Bulgarian, as well as practices of racist harassment on the part of teachers, further compound the situation.
The claimants allege that the material conditions in the Roma-only schools are inferior, too. Because of the excessive number of students, the available classrooms are not sufficient to hold them. Therefore, as a matter of practice, students are educated in three shifts, while the official norm is two shifts. The heating and electricity is substandard, often breaking down. Classrooms are overcrowded, and the provision of schoolbooks and teaching materials is inadequate. Computer equipment is unavailable, while computer classes are an imperative component of the official national curriculum.
Our clients assert that, as a result of inefficient and discriminatory educational management, drop-out rates in the respondent 75th School are disproportionately high. In grades 11 and 12, as few as 26 and 16 students, respectively, attend in the entire grade, in stark contrast to the excessive number of students in lower grades mentioned above.
The claimants assert that the inferior education they receive deprives them of any chance to pursue higher education and renders them disproportionately uncompetitive in the labor market.
Our clients assert that the discrimination they suffer constitutes a breach of Article 6 of the Bulgarian Constitution banning racial discrimination, as well as of Articles 14 and 53 of the Constitution, safeguarding the rights of the child and the right to education, respectively. Further, the discrimination our clients are subjected to is alleged to constitute a breach of Article 29 of the Constitution banning degrading treatment.
Relying on incorporated international law, our clients assert a breach of the UNESCO Convention against Discrimination in Education, which specifically bans the purpose or effect of limiting individuals or groups to inferior education (Article 1 (1.b)). They put forth that equal access to education as guaranteed by the Convention implicitly includes equal chances of graduation as defined by graduation rates, as well as grade-repeating and drop-out rates. Equal access to education is also argued to implicitly include equal academic achievement, both in terms of immediate results, as documented by examinations and tests, and in terms of long-term educational outcome, as defined by competitive labour market standing following graduation.4
The claimants further assert a breach of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, which bans racial discrimination in the exercise of the right to education and training; of Articles 2 and 13 of the International Covenant on Economic, Social and Cultural Rights and of Articles 2 and 24 of the International Covenant on Civil and Political Rights - guaranteeing non-discriminatory enjoyment of the right to education; of Article 2 in conjunction with Articles 28 and 29 of the Convention on the Rights of the Child, guaranteeing non-discrimination in the enjoyment of the right to education; of Article 2 of the Additional Protocol in conjunction with Article 14 of the European Convention on Human Rights, which ban discrimination in education. They also assert that the discrimination in education they suffer amounts to degrading treatment in breach of Article 3 of the European Convention on Human Rights.
Our clients further invoke domestic statutory guarantees of non-discrimination in education under Article 4 of the National Education Act. They contend that further provisions of this law are breached too, including:
- Article 3, binding the national educational system to ensure education according to state educational standards;
- Article 14, requiring schools to ensure the normal physical and mental development of schoolchildren;
- Article 22, requiring schools to ensure education in accordance with students' individual capabilities and expectations for future self-fulfillment - and binding schools to ensure the achievement by students of the general educational minimum;
- And Article 35, placing oversight responsibilities on Ministry of Education authorities.
Further, breaches of secondary legislation are alleged, including Article 95 and 96 of the Regulations on the Implementation of the National Education Act stipulating, respectively, an exclusive possibility for two studying shifts, and the requisite minimal duration of one shift, and Article 159, binding schools to provide school books and teaching materials, as well as Addendum No.1 to Decree No.5 of 30.05.1994 stipulating maximum student numbers per class.
The case was, as of November 19, 2003, pending its first hearing.
As lawyers serving our clients, we act through the law to remove segregation as an illegal obstacle to rights enjoyment. We work to enforce the law and its rule. Through us, our clients act to win an opportunity to access the mainstream and its resources of status, opportunity and advancement. Pursuing the public interest, they seek to uphold the right to equality as a right to a mainstream identity and to participation. They mean to overcome isolation and emancipate their potential for inclusion and fulfilment. It is an honour and a privilege to serve them in this case, which we regard as fundamental in the struggle to secure a just society.
- The authors are practicing attorneys, specialising in anti-discrimination litigation. They represent the Romani students in the lawsuit against segregation of Roma in education, which is the subject of this article. Margarita Ilieva is legal consultant on strategic anti-discrimination litigation for the ERRC and the Bulgarian Helsinki Committee. Daniela Mihaylova is legal consultant for the Sofia-based Romani organisation Romani Baht.
- See, inter alia, Denkov, Dimitar, Elitsa Stanoeva, Vassil Vidinski. Roma schools – Bulgaria 2001. Sofia, OSF, 2001, p. 10-11.
- See Bulgarian Helsinki Committee. First steps: An evaluation of the NGO desegregation projects in six cities in Bulgaria. Roma Participation Program, Open Society Institute, Budapest, 2003.
- See Paivi Gynther. “International Non-Discriminatory Guarantees in Education: Empty Vows or Effective Mechanisms”. In Roma Rights, Nr 3-4 2002, at: http://www.errc.org/rr_nr3-4_2002/index.shtml.