Not all discrimination breaches human rights. For example, a school might discriminate between students of different abilities or because of particular needs. That’s why human rights law doesn’t prohibit discrimination as such. The problem is with discrimination which cannot be justified with reference to a legitimate aim. Here’s a case where judges had to figure out whether discrimination against Roma children was justified and proportionate. Over half were being sent to schools for children with “mental deficiencies”. Can you predict the outcome?
The Czech Republic had special schools for children with “mental deficiencies” who were unable to attend ‘ordinary’ schools. Statistics showed that 56% of students in special schools were Roma, but that Roma represented only 2.26% of the total of ‘ordinary’ primary-school kids. The 18 applicants were Roma students placed in special schools. The Constitutional Court rejected their argument that there was racial segregation and discrimination because of the two educational systems: special schools for the Roma and ‘ordinary’ primary schools for everyone else. So they complained to the European Court of Human Rights that they had been discriminated against.
The court said that there had been breaches of the prohibition on discrimination and the right to education. The statistics the applicants relied on were reliable and significant enough to indicate indirect discrimination. So the government had to justify the discrimination to avoid breaching the European Convention. It couldn’t. The tests given to students were biased and weren’t assessed considering the special characteristics of the Roma children taking them. The schooling arrangements for Roma children didn’t have safeguards that would make sure that the government had considered their special needs as members of a disadvantaged class.
The result was that the applicants had been put in schools for children with mental disabilities, where their education added to their difficulties and compromised their development, instead of helping them to become part of the ‘ordinary’ schools and develop the skills needed for life among the majority population.
The way the Czech law was applied had a disproportionately discriminatory effect on the Roma community, so the applicants as members of that community had suffered the same discriminatory treatment and it was unnecessary to consider their individual cases.
So, the discrimination wasn’t justified, or legal. It breached the children’s human rights.