The Non-Discrimination Principle And Its Effect On The Education Of Roma Children In The Czech Republic
| Author | Leslie Burton |
| Position | Assistant Professor and LL.M. candidate, Golden Gate University School of Law |
| Pages | 665-678 |
Assistant Professor and LL.M. candidate, Golden Gate University School of Law. J.D., Santa Clara Law School. Professor Burton spent the spring 2000 semester teaching at the Charles University (Karlovo Univerzity) in Prague, Czech Republic. She would like to thank Maria Grahn-Farley for her advice and assistance with this essay.
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All states ratifying the Convention on the Rights of the Child (CRC) are bound to comply with Article 2, which requires States Parties to respect the rights of all children, without discrimination of any kind. In the Czech Republic, however, there is systematic discrimination against the Roma (also referred to as Gypsies). As a result, Roma children are not getting the education they are ensured under Article 28 of the CRC. The Czech Republic has tried, and continues to try, different methods to resolve the problem and to comply with the CRC. This essay will explore the nature of the problems and the past attempts at developing a cure. Finally, this essay will make recommendations as to methods that may help eliminate discrimination against Roma children in education, while promoting other rights contained in the CRC as well.
Two years ago I taught at the Charles University in Prague, capital of the Czech Republic, and one of Europe's most beautiful cities. During the course of my six-month-stay, I met many wonderful Czech people. Many of them were students, professors, and well-educated professionals. Virtually all of my Czech acquaintances, no matter from what walk of life they came, felt compelled to warn me about the Roma.
"Watch out for Gypsies," I was told. "They will steal your wallet." "We do not have much crime," someone else said later. "Except for the Gypsies, and their pick-pocketing."
"Hold onto your handbag carefully when Gypsies are around," another new friend advised.
Ironically, I rarely saw "Gypsies." In fact, the Roma constitute only 2 to 3% of the population of the Czech Republic.1 Nonetheless, fearPage 666 combined with prejudice made their presence loom large. "The kids don't go to school," someone said. "They make money for the family by begging or stealing."
These attitudes have led to widespread discrimination against the Roma. This essay will discuss the Czech Republic's attempts to combat this discrimination, which is prohibited under Article 2 of the CRC, and whether this discrimination is causing the Czech Republic to violate the Roma children's right to education, conferred under Articles 28 and 29 of the CRC.
The Convention on the Rights of the Child has its roots in prior United Nations declarations. The idea that children need special protections under the law gave rise, in 1924, to the League of Nations adopting a Declaration on the Rights of the Child.2 The United Nations adopted an expanded Declaration in 1998.3 Then, in 1979, the International Year of the Child, Poland introduced the idea of an international convention on children's rights.4 For ten years workshops were held to hammer out the wording of the treaty.5 The draft was completed in 1989.6
In 1989, the U.N. General Assembly unanimously adopted the CRC.7The CRC was then signed and ratified by virtually every nation in the world except for the United States and Somalia.8
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The Czech Republic acceded to the CRC on February 22, 1993 (with the exception of Article 7, to which it took a reservation9).
As a treaty, the CRC is horizontally binding between all of the States Parties.10 Further, under Czech law, international treaties become subsumed into national law, ranking equally with the Constitution.11Violations of human rights provisions, such as those in the CRC, can be invoked directly before a national judge.12 Therefore, the Czech Republic must assure that Roma children - like all children - receive the rights they are assured under the CRC.
The rights bestowed by the CRC (including the right to education) are ensured to all children "without discrimination, irrespective of the child's,Page 668 or his or her parent's, race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."13 Although not defined by Article 2 itself, discrimination has been defined by the Human Rights Committee as "any distinction, exclusion, restriction or preference."14 Article 2 does not give rise to a cause of action for discrimination, but assures that all of the other rights provided by the CRC will be applicable to all children, without discrimination.15 The Roma child may fall into several protected categories as described in Article 2 of the CRC.
According to the Czech government, the Roma differ from other Czech minorities "due to specific anthropological and social characteristics."16These physical or cultural characteristics do not justify discrimination against the Roma because Article 2 specifically prohibits discrimination based on race, national, ethnic, or social ethnic origin.17
According to the Czech Republic, the Roma as a group tend to live in poverty, with some Roma children engaged in child prostitution while living on the street18 (actions they should be protected against under the CRC).19 Even though Article 2 does not specifically mention poverty as aPage 669 prohibited ground for discrimination, commentators have so interpreted the provision.20 Thus the Roma's poor economic status does not justify discrimination either. The inclusion of poverty may be based on Article 2 language prohibiting discrimination on the basis of "property. . . or other status."21
The Roma often are not considered to be citizens of the Czech Republic, and may in fact be stateless, despite long-term residency in the Czech Republic.22 Nonetheless, the Roma's lack of citizenship may not be used as a basis to discriminate against them. Article 2 itself does not mention citizenship, nor specifically prohibit citizenship-based distinctions23. States Parties, therefore, may endow citizens with different legal rights from resident aliens without arousing the suspicion inherent in enacting racially-based laws. Many of these distinctions would be legitimate and would not violate Article 2.24 The Czech Republic has taken care to guard its citizenship laws and has taken a special interest in regulating citizenship, so much so that it took a reservation to Article 7(1) of the CRC, which otherwise would give all Czech children a right to Czech nationality.25 The Czech Republic has not, however, argued that its citizenship laws relieve it of its obligation to guarantee all children the right to education, nor that the laws allow discrimination in regard to educating Roma children. In any event, any distinctions based on citizenship may not be arbitrary. When a Roma child and a Czech child are both permanent residents of the Czech Republic, any distinction between their respective rights to education would be arbitrary, and thus not a legitimate distinction under Article 2.26
Thus, the Czech Republic cannot discriminate against Roma children, be it on the basis of race, culture, poverty, or citizenship. Any rightsPage 670 guaranteed by the CRC must be given to Roma children without discrimination.
Article 28 of the CRC guarantees all children the right to education.27Article 28 specifically requires that States Parties shall "[t]ake measures to encourage regular attendance at schools and the reduction of the drop-out rate."28 The effect of Articles 2 and 28 together is that the Czech Republic has the obligation to educate Roma children without discrimination.
The Czech Republic has laws to this effect. Its Charter of Fundamental Freedoms states that "fundamental rights and freedoms are guaranteed to everybody irrespective of . . . membership in a national or ethnic minority. . . ."29 The Charter also bestows the right of education on all children. Article 33 of the Charter declares: "Everybody has the right to education . . . ."30 Under the Czech mandatory education law, all childrenPage 671 are required to attend nine years of school,31 from age six through fifteen.32Further, the Charter provides that the education will be free.33 Thus, the Czech laws as written apply to all children, without exclusion, and would seem to comply with Articles 2 and 28.34 But the analysis must not stop with reviewing the law on the books. The way the law is applied must be examined.
Roma children's rate of school attendance is very low.35 Those few Roma children who go to school are frequently placed in "special" classes or classes for mentally disabled children.36 They may be prohibited from taking academic classes and steered into technical or vocational schools.37Others are placed in segregated schools, separate from other non-Roma children.38
Not surprisingly, in light of the foregoing, over eighty percent of Roma children drop out before completing their mandatory education.39 Fewer than three percent graduate from secondary (high) school.40 Only one percent graduate from college.41 Thus it seems that systematic discrimination denies the Roma children an education.
This problem has been noted by the United Nations Committee on the Rights of the Child42 and by the United Nations Committee on the Elimination of Racial Discrimination.43 The latter said:
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The marginalization of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large...
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