Bringing cases challenging discrimination against Romani children in remedialspecial schools
On March 16, 1999, the European Roma Rights Center (ERRC) organised a workshop in Budapest on legal challenges to educational discrimination for lawyers from Central Europe. The workshop focused on three main issues: i) the special schools system in the Czech Republic, ii) the US experience in litigating cases of educational discrimination, and iii) the central and eastern European context with respect to using litigation as a tool for achieving social change. Among the participants were ERRC staff attorneys; John Vail, a leading U.S. lawyer specialising in litigating cases of educational discrimination; and more than a dozen lawyers from Hungary, Slovakia, and Yugoslavia.
The workshop opened with a discussion of a case being developed by the ERRC in the northeastern Czech city of Ostrava (See „Lawsuits filed by Roma challenge racial segregation in Czech schools" above). Ms Deborah Winterbourne, ERRC staff attorney, explained that the ERRC's goal is to challenge the practice of placing disproportionate numbers of Romani children into remedial special schools for children deemed „mentally deficient". Ms Winterbourne gave a brief outline of the facts of the case. She related that there are seventy „normal" schools and eight remedial special schools in Ostrava. Remedial special schools often comprise 80% or 90% Romani children. A child sent to a remedial special school is expressly excluded by law from subsequently attending secondary grammar school — the gymnázium. Romani children are generally enrolled in remedial special schools in one of two ways: i) they are enrolled in the first class of special school, often following the recommendation of a doctor, or ii) they are transferred from basic school to remedial special school. Both avenues should involve a psychological evaluation, but in practice this is not always the case. Psychologists have complete discretion over the substance of the evaluation. Some simply talk to the child for fifteen minutes and consider this time sufficient to make a diagnosis. Where IQ tests are used, Romani children often fail because tests are culturally biased or are administered in a manner utterly insensitive to the needs of Romani children. ERRC research in Ostrava indicates that nearly every point in the enrolment process is tainted with racial bias.
Following the elaboration of the facts of the case, Ms Winterbourne moved on to discuss the evidence and logistics of gathering evidence, and then continued with a description of relevant Czech and international legal standards.
Mr John Vail of the Association of Trial Lawyers of America explained US law and practice in litigating cases challenging educational discrimination. He addressed US legal theories of liability, but also emphasised practical problems which arise in public interest litigation more generally, thus allowing participants to draw analogies to their local situations. These included the choice of plaintiffs, the choice of defendants, the choice of judicial forum, the question of which remedies to seek, and ethical issues arising from the potential conflict between an individual client's interest and the goals of the litigation as a whole. In addition, Mr Vail addressed questions concerning communications between clients and counsel; confidentiality requirements; the use of expert witnesses; management of documents in large cases; and evidentiary issues.
The workshop succeeded in accomplishing a number of things. First, it brought together human rights lawyers from three different countries in the region — Hungary, Slovakia, and Yugoslavia — and provided an opportunity for them to openly discuss the problem of educational discrimination of Roma in their countries and elsewhere. Secondly, the event provided a framework for productive discussion of legal strategies in litigating on behalf of Roma in educational discrimination cases. Finally, the seminar provided for an exchange of perspectives among European and non-European lawyers on the implementation of international and comparative legal standards and on how best to achieve social change and win just treatment of Roma in the field of education.