In its decision in Oršuš and Others v. Croatia on Tuesday (3/16), a seventeen-member Grand Chamber of the European Court of Human Rights (ECtHR) held that the policy of Croatian primary schools distinguishing among students based on their grasp of the Croatian language resulted in discriminatory segregation of Roma students in violation of the European Convention on Human Rights. The 9-8 decision reverses a unanimous ECtHR Chamber judgment from 2008 and counters a 2007 Croatian Constitutional Court decision that upheld the policy.
The applicants, fifteen Roma students from two Croatian primary schools, contested the schools’ policy of placing students who lacked an adequate command of the Croatian language in separate classes. In both schools, the separate classes consisted solely of Roma students. They argued that this fact, taken along with the high drop-out rates and low attendance of Roma students, amounted to discriminatory school segregation in violation of Art. 14 of the European Convention on Human Rights (prohibition of discrimination) and Art. 2 of Protocol 1 to the Convention (right to education).
While all students in the separate classes were Roma, not all Roma students at the school were in separate classes. In fact, most Roma students were fully integrated. The Court thus found it could not rely upon its previous jurisprudence on the subject of school segregation, which had found prima facie discrimination only where a large majority of Roma students were subject to different schooling policies.
Nevertheless, the Court determined that the fact that only Roma students lacked sufficient grasp of the Croatian language mandated that the schools apply special safeguards to ensure that their stated end of providing for the special needs of such students was adequately pursued, especially given the position of Roma as “a special type of disadvantaged and vulnerable minority [that] require special protection.” It found such safeguards lacking. The schools did not, for example, adequately test the linguistic skills at issue or provide sufficient language instruction in the separate classes. Furthermore, they did not take measures to combat the low attendance and high drop-out rates of Roma students. From these facts, the Court concluded that “the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group.”
The minority opinion argued that, absent evidence showing discrimination on ethnic grounds, the Court should have afforded the state “quite a wide margin of appreciation” when deciding how “to address the special needs of certain pupils.” This was especially true given that Croatia’s Constitutional Court and an ECtHR Chamber had already unanimously approved the measure. According to the minority, the majority’s reasoning is better understood as an attempt to address the general disadvantages faced by the Roma population, rather than as a response to the particular situation that the Croatian educators faced.