Legislative review for the Hungarian roma education policy note
Segregation as well as other forms of discrimination of Roma children are deeply entrenched in the Hungarian educational system – a fact substantiated by a number of sociological studies (Havas, 2000), the reports of domestic and international human rights NGO’s (White Booklet, 2002; Monitoring, 2001), the Parliamentary Commissioner for the Rights of National and Ethnic Minorities (hereinafter: Minorities Ombudsman)2 and international organizations. In its second report on Hungary, the European Commission against Racism and Intolerance specified discrimination against Roma in the field of education as one of the main issues of particular concern: “ECRI is particularly concerned by evidence of widespread discrimination and disadvantage for [the Roma] in the field of education, which is one of the corner-stones on which equal participation in society is built” (ECRI, 2000/5. Par. 29.). The 2002 concluding observations of the UN Committee on the Elimination of Racial Discrimination also deal in detail with the “discriminatory practices” concerning Roma students (CERD, 2002, Par. 382.).
In spite of the extensive and intricate legislative framework concerning the different aspects of public education, we can conclude that effective instruments against discriminatory practices are largely missing (where they exist, they remain mostly unused) and in a number of instances, provisions originally intended to facilitate action against discrimination prove to have discriminatory effects, as funds available to local educational authorities for the establishment of remedial classes to improve educational opportunities for Roma children are widely misused or abused. Three common patterns of segregation seem to unfold: ‘special schools’ established for children with mental disabilities, often predominantly attended by Roma students; segregated ‘Gypsy schools’; and segregated classes within ‘mixed’ schools, usually of a lower standard in terms of teaching materials and quality. A relatively new form of segregation results from the abuse of the provisions concerning so-called “private students”.
Due to the lack of space it is impossible to cover all the aspects of the educational legislative framework that are relevant from the point of view of the discrimination or integration of Roma children, so we will focus on the provisions explicitly targeting discrimination and the legal background of the aforementioned patterns of discrimination. We will also look briefly into the new legislative developments aimed at the elimination of legal gaps and dysfunctional legal institutions leading directly or indirectly to discriminatory practices.
2. Anti-discrimination provisions in education
2.1. Anti-discrimination provisions in laws on education
The starting point of the existing Hungarian anti-discrimination system is the general anti-discrimination clause (Article 70/A) of Act XX of 1949 on the Constitution of the Republic of Hungary (hereinafter: Constitution).
(1) The Republic of Hungary shall ensure human and civil rights for everyone within its territory without discrimination of any kind, whether based upon race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or upon any other grounds.
(2) Any discrimination described in Paragraph (1) shall be severely punished by law.
(3) With, inter alia, measures aimed at the elimination of the inequalities of opportunity the Republic of Hungary assists in the realization of the equality of rights.
This constitutional provision is amplified by a patchwork of anti-discrimination provisions scattered in statutes governing different fields of social life, such as labor, healthcare, and so on. In education we also find such a supplementary provision: Article 4 Paragraph (7) of Act LXXIX of 1993 on Public Education (hereinafter: Public Education Act) declares that all forms of discrimination are prohibited in public education on any basis, especially on grounds of the color, sex, religion, national or ethnic affiliation, political or other opinion, social, ethnic or national minority origin, financial condition, age, birth or any other situation of the child or the child’s relatives as well as based on the maintainer of the educational institution.
The criticism voiced on a number of occasions with regard to the field of education was that no sanctions back up this ban on discrimination, which therefore remains no more than a well resounding declaration (Kádár–Farkas–Pardavi, 2001). At the legislative level, there has been some improvement in this respect, however, the efficiency of implementation also needs to be taken into consideration.
Let us examine what instruments victims of educational discrimination may resort to. The Public Education Act still does not contain any specific sanction for instances of discrimination, however, compensation for damages arising from discriminatory actions may be claimed under Article 77 Paragraph (3) of the Public Education Act: “The kindergarten, the school, the dormitory or the organizer of practical training shall be fully liable for any damage caused to the child in connection with placement in the kindergarten, student status, dormitory placement or the practical training, irrespective of its culpability [i.e. irrespective of whether the educational institution is “at fault” with regard to the damage]. Decision on the damages shall be made in accordance with the Civil Code, with the difference that the educational institution or the organizer of the practical training may only be relieved of its liability if it proves that the damage occurred due to an unavoidable cause that falls beyond the scope of its activity. Damage shall not be compensated for to the extent that it originates from an activity attributable to the aggrieved person.”
As we can see, this liability is stricter than ordinary liability, the rules of which are defined by Article 339 of Act IV of 1959 on the Civil Code of the Republic of Hungary (hereinafter: Civil Code): “A person who causes damage to another person in violation of the law shall be liable for such damage. He shall be relieved of liability if he is able to prove that he has acted in a manner that can generally be expected in the given situation.” As opposed to this, in order to be relieved of liability related to educational damages, it is not sufficient for the educational institution (the kindergarten or the school) to prove that it acted in a manner that can generally be expected in the given situation; the educational institution has to prove that the damage occurred due to an unavoidable cause that falls beyond the scope of its activity.
In spite of this, the above quoted provision setting forth a special educational liability is almost never invoked in discrimination lawsuits. The reason for this might be that its application would raise rather complicated legal questions in connection with the Civil Code’s provisions related to damages.
2.2. Anti-discrimination provisions of the Civil Code
In the Hungarian practice Articles 76 and 84 of the Civil Code together are used by victims of discrimination, attorneys, human rights activists and NGO’s as a substitution for a general anti-discrimination sanction system, since they can be used for any kind of discrimination with no regard to the nature of either the field (labor, education, service sector, etc.) or the grounds of discrimination (ethnic, gender, etc.).
Article 76 provides that discrimination against private persons on the grounds of gender, race, ancestry, national origin, or religion; violation of the freedom of conscience; any unlawful restriction of personal freedom; injury to body or health; contempt for or insult to the honor, integrity, or human dignity of private persons shall be deemed as violations of inherent rights.
The possible remedies are listed under Article 84 of the Civil Code.
(1) A person whose inherent rights have been violated may have the following options under civil law, depending on the circumstances of the case:
a) demand a court declaration of the occurrence of the infringement;
b) demand to have the infringement discontinued and the perpetrator restrained from further infringement;
c) demand that the perpetrator make restitution in a statement or by some other suitable means and, if necessary, that the perpetrator, at his own expense, make an appropriate public disclosure for restitution;
d) demand the termination of the injurious situation and the restoration of the previous state by and at the expense of the perpetrator and, furthermore, to have the effects of the infringement nullified or deprived of their injurious nature;
e) file charges for damages in accordance with the liability regulations under civil law.
(2) If the amount of punitive damages that can be imposed is insufficient to mitigate the gravity of the actionable conduct, the court shall also be entitled to penalize the perpetrator by ordering him to pay a fine to be used for public purposes.
As we can see, Paragraph (1) point (e) refers to the Civil Code’s general rules of liability for damages, so if someone’s inherent rights have been violated through a discriminative act, he/she may claim damages according to these general rules. We saw above that these rules differ to some extent from the stricter rules of liability for educational damages (as set forth by Article 77 of the Public Education Act). So the question arises: what happens if someone is discriminated for instance in a school and thus his/her inherent rights are violated? Does he have to claim damages under Articles 76 and 84 of the Civil Code, should he/she invoke Articles 4 and 77 of the Public Education Act or can he/she base his/her claim on the combination of all these provisions?
To illustrate the problem, let us refer to the widely known Tiszavasvári discrimination case. In June 1997 – citing sanitary reasons (a high degree of pediculosis among Roma students) – the Tiszavasvári elementary school organized a separate graduation ceremony for Roma students and forbade them from using the school’s gym. The plaintiffs (represented by the Roma Polgárjogi Alapítvány /Romani Civil Rights Foundation/) brought a civil lawsuit based on Article 76 of the Civil Code (violation of inherent rights through discrimination). In accordance with Article 84 they requested the court to declare that their inherent rights had been violated and (also referring to Article 84) they demanded non-pecuniary damages.3
As Article 84 refers to the general rules of compensation, the defendant (the school’s maintainer, the local government of Tiszavasvári) could have attempted to defend itself by claiming that it had acted in a manner that can generally be expected in the given situation (trying to prevent pediculosis from spreading). If however the plaintiffs had based their damage claim on Article 77 of the Public Education Act, the school could only have been relieved of liability if it had proved that the non-pecuniary damage caused to the discriminated students occurred due to an unavoidable cause that falls beyond the scope of its activity. As the separation of the graduation ceremonies can by no means regarded as falling beyond the school’s scope of activity, the application of the special educational liability clause could have eased the plaintiffs’ procedural position. It is however, unclear whether in the event that one bases his/her claim on Articles 76 and 84 of the Civil Code, he/she can request the court to establish liability under Article 77 of the Public Education Act (since Article 84 of the Civil Code refers to the general rules of liability). Although there is a legal principle that if there is a general and a special rule for something, the special rule shall prevail, the joint use of the Articles may raise legal complications.
At present we know of one test case that is trying to invoke Article 77 of the Public Education Act in a lawsuit related to discrimination. In the village T. ten pupils were placed in a “remedial class” without the expert opinion on the basis of which they could legally be placed in a class of differing educational plan: in 1994 a merged small group class was created to cater for pupils with learning and behavioral problems. However, the placement of children in this class had not been preceded by expert examinations compulsory under relevant legal provisions. Between 1994 and 1999 ten children had spent shorter or longer periods in the special class. Out of the ten concerned children five were of Roma origin. Although the Legal Defence Bureau for National and Ethnic Minorities (NEKI) approached by the father of one of the concerned pupils, could not beyond doubt establish a pattern of ethnic discrimination in the case, due to the gravity of the rights violations involved, it resolved taking it on. No decision in the case has been delivered yet (White Booklet, 2000).
2.3. The petty offense of educational discrimination
A relatively recent development in sanctioning discrimination in education is the petty offense entitled “violation of rules pertaining to conducting educational activity”: Article 142 Paragraph (5) of Government Decree 218/1999 on Petty Offenses declares that the person who, by deliberately violating legal provisions pertaining to public education discriminates against a child or student is punishable with a fine up to HUF 100 000 (approximately USD 435). This provision came into force on 13 May, 2002.
As of yet we have no information on how frequently and efficiently it has been invoked, how many petty offense procedures have been launched on this count and what the decisions have been. It is however somewhat unfortunate that it is the notary who is entitled to conduct such petty offense procedures. The reason is the following:
In terms of Article 36 Paragraph (1) of Act LXV of 1990 on Local Governments (hereinafter: Local Governments Act), the local government appoints the notary. According to Article 35 Paragraph (1) point (e) the mayor exercises the employer’s rights over the notary. Thus, the notary is from a number of aspects dependant on the local government.
Most schools are maintained by local governments. Under Article 102 Paragraph (2) point (c) of the Public Education Act, it is the maintainer’s obligation to supervise the lawfulness of the educational institution’s operation and in terms of point (d) the maintainer exercises the employer’s rights with regard to the head of the educational institution, who – under Article 54 Paragraph (1) of the Public Education Act – is responsible for the institution’s lawful operation. Discrimination (especially in small settlements) cannot go unnoticed by the local government. If therefore, it is established in the framework of a petty offense procedure that educational discrimination has taken place, the responsibility of the local government will be not so difficult to establish.
If the victims of discrimination (thus sanctioned in the petty offense procedure) claim damages, the self government can easily turn out to be liable, as under Article 348 of the Civil Code, if an employee causes damage to a third person in connection with his employment, the employer shall bear liability towards the injured person. Since the maintainer shall be regarded as the employer with regard to the head of the educational institution (and the head of the educational institution is the employer of all the staff in the institution), damages caused to the children by the staff of the educational institution will eventually be paid by the maintainer, i.e. (in most cases) by the local government. Thus, in the majority of cases it may not be in the notary’s interest to act firmly against educational discrimination.
2.4. Prospective developments
After long years of professional debate the Government formed in May 2002 committed itself to reforming the Hungarian system of anti-discrimination. The government program explicitly contained the promise of the adoption of a comprehensive anti-discrimination law: “We are going to submit and adopt the bill on anti-discrimination. We are going to specifically sanction discrimination causing and accelerating the social exclusion of the Roma (http://www.kormany.hu/program/III/C/).” In accordance with the plans, the Ministry of Justice prepared the Concept Paper of the Act on Equal Treatment and Equal Opportunities (hereinafter: Concept Paper) in late November 2002. The Draft Bill based on the Concept Paper is in the progress of being finalized.
A big breakthrough envisioned by the Concept Paper is the setting up of a specialized body for combating discrimination. The Equal Treatment Committee would be authorized to investigate cases of discrimination in a number of fields including education and with regard to a wide range of grounds including racial and ethnic origin. The Concept Paper gives a definition of segregation and explicitly forbids such practices – generally and specifically in relation to education as well. A very important development is that the Equal Treatment Committee – besides other measures – would be entitled to impose a fine of HUF 50 000 – HUF 3 000 000 (USD 220 – 13 200) on discriminators. Such a general anti-discrimination fine would be a novelty in the field of education. Unlike the notary, the Equal Treatment Committee would be independent from the school maintainers, so this sanction may prove to be adequately effective and dissuasive.
3. Special schools
3.1. Summary of the problem
Channeling Roma students into special schools originally established for children with slight mental disabilities is a form of segregation common to the countries of the CEE region. Hungary is no exception. Where doubts emerge about the ability of students to cope with normal school, a so-called ‘expert panel’ examines them for possible attendance at a ‘special school’, intended for children with physical or mental disabilities with lower requirements for pupils. Children remain at these schools until their abilities are considered to be sufficient for elementary education, and may continue through the auxiliary system throughout primary level, with practically no chance of continuing to secondary schools afterwards. Roma are disproportionately represented at both the testing and selection stages.4 ECRI reports that “such channeling, which in principle is carried out by an independent board, is often quasi-automatic in the case of Roma/Gypsy children.”(ECRI, 2000/5. Par. 31) The CERD “strongly recommends that [Hungary] reconsider its policy of assigning Roma children to schools and classes for the mentally disabled (CERD, 2002, Par. 382).”
This practice is extremely dangerous because “[this form of] education can be regarded as a dead-end street from two aspects: in theory there is a possibility [for the children] to be reintegrated into normal school education and to get admitted to secondary school, however, in practice this is not true. The teachers interviewed could only recall one or two cases when after a couple of years of special school education the child could be reintegrated into a maiustream school. […] This form of education is also a dead-end street because it cannot serve as the basis of secondary or vocational education. The teaching of basic knowledge stops at the level of 6th grade, while some subjects are completely missing. The lack of physics, chemistry or biology prevents the children from studying a number of professions later on (Loss, 2001).”
In spite of the international warnings, available statistics show a depressing picture. The percentage of Roma children in special schools from about 25% in 1974–75 to 42% in 1992 (MCE, 1993). Due to the rules of data protection, no official statistics are available after this date, but numerous sociological studies have dealt with the issue. A 1997 survey involving 309 special schools estimated the percentage of Roma pupils to be over 40% (Radó, 1997), whereas a 1998 survey in Borsod county showed over 90% of students attending schools with special curricula to be Roma (Loss, 2001). Most experts agree that a good number of Roma children attending special schools are not even slightly mentally disabled and are only relegated to such institutions due to the negligent failure to take into consideration their specific socio-cultural characteristics and owing to – conscious or unconscious – discriminatory considerations (Report..., 2000).
3.2. Legislative framework
This practice clearly constitutes a violation of the law. Article 10 Paragraph (3) point (a) of the Public Education Act declares that it is the child’s right to receive education that corresponds to his/her abilities, interest and capacities. Article 13 Paragraph (1) approaches the question from the parent’s point of view when it sets forth that the parent shall have the right to choose for his/her child an educational institution that is suitable for the child’s abilities, interest and capacities. Article 19 Paragraph (7) point (b) claims that it is the educator’s obligation to take into account the child’s individual abilities, talents, the pace of the child’s development, the child’s socio-cultural background and also to assist children disadvantaged for any reason in catching up with the others.
Let us start the assessment of the legal framework by examining how the law regulates the procedure of the expert panels, which are authorized to decide about relegation into special schools. If the child goes to kindergarten it is the nursery teacher’s task to establish whether the child is suitable for school attendance. If he/she believes that the child has some physical or mental disabilities that would pose a problem in this respect, in terms of Article 12 Paragraph (3) of Decree 14/1994. of the Ministry of Education on Educational Obligations and Pedagogical Services (hereinafter MKM Decree 14/1994.), he/she shall contact the parent and suggest that the child be examined by the expert panel (“expert panel on rehabilitation”).
In terms of Article 22 Paragraph (4) of MKM Decree 14/1994., if the child does not attend kindergarten, his/her suitability for school attendance shall be established by the educational advice center. Under Paragraph (5) of the same Article, in the event that the educational advice center comes to the conclusion that the child is physically or mentally disabled it shall suggest to the parent that the child be examined by the expert panel.
In terms of Article 22 Paragraph (1) point (c) of the Decree, if doubts about the child’s capacity to cope with “normal school” emerge in the course of school education (if the child has learning, behavioral difficulties or problems with fitting in), the educational advice center conducts a preliminary examination. Here again, if the center believes that the child’s physical or mental disability lies behind the problems, a suggestion is made to the parent concerning appearance before the expert panel.
The expert panel examines the child and prepares an expert opinion. Under Article 14 of MKM Decree 14/1994., the expert opinion shall – among others – contain the establishment of disability, the description of the facts supporting this conclusion, a conclusion on whether the child shall attend a special educational institution or may participate in integrated education, and a list of those educational institutions where – taking into consideration the panel’s conclusion concerning the learning capacity of the child – the child can fulfill his/her educational obligation.
We can see that in theory the procedure is based on parental involvement. As a reaction to the indications concerning the disproportionate number of Roma children in special schools, the Decree was amended in 1998 (by Decree 3/1998. of the Ministry of Education) and in 2001 (by Decree 4/2001. of the Ministry of Education) with the aim of strengthening the role of the parents in the process. At present the parent’s most important rights – as guaranteed by MKM Decree 14/1994. – are the following:5
Article 5 Paragraph (5): Upon the voluntary request of the parent, in the course of their examination the educational advice center and the expert panel shall take into consideration the special linguistic and socio-cultural characteristics of children belonging to minority groups. The parent shall be informed about this opportunity in writing. (This provision is intended to prevent Roma children from being sent to special schools for language reasons.6)
Article 12 Paragraph (1): The examination of the expert panel shall – unless MKM Decree 14/1994. stipulates otherwise – be launched upon parental request or with parental consent.
Paragraph (3): If the educational institution believes that the child ought to be examined by the expert panel, it contacts the parent and suggests the child’s participation in the examination. The reason for the suggestion shall be communicated to the parent.
Paragraph (4): If the parent consents, he/she shall sign the request for expert examination, which is then sent by the educational institution to the expert panel.
Article 13 Paragraph (2): The examination of the expert panel may not be started in the absence of the parent, unless the parent’s whereabouts are unknown or he/she is permanently prevented from attending the examination. (The parent is obliged to participate in the examination.)
Article 14 Paragraph (1) point (l): The expert opinion of the expert panel shall contain a warning that if the parent does not accept the opinion, he/she has the right to request the competent notary for a review of the opinion.
Paragraph (3): The expert panel informs the parent of the possibilities in accordance with which the child may fulfill his/her educational obligations. From among the educational institutions suggested by the expert panel it is the parent who chooses the so-called “designated” educational institution.
Article 15 Paragraph (1): The parent shall be informed about the contents of the expert opinion. A copy of the opinion shall be handed over or sent to the parent. In the course of the information process, the parent’s attention shall be drawn to the fact that the implementation of what is included in the expert opinion is only possible if he/she agrees and his/her consent is verified by his/her signature. The parent’s attention shall also be drawn to the fact that if he/she disagrees with the contents of the expert opinion, he/she may initiate its amendment by launching a public administrative procedure with the competent notary.
Paragraph (2): If the parent agrees in writing with the expert opinion, the expert panel sends it to the designated educational institution.
There are also a number of provisions that are aimed at preventing parents from abusing these rights. Under Article 30 Paragraph (4) of the Public Education Act, the notary may – in the interest of the child – oblige the parent to appear together with the child at the expert panel’s examination or to enroll the child to the educational institution designated in the expert opinion. In terms of Article 18 of MKM Decree 14/1994., this procedure may be initiated (a) by the concerned institution if the parent does not agree with the necessity of the examination or refuses to sign the request for expert examination; (b) by the expert panel if the parent and the child repeatedly fail to appear at the examination, if the parent refuses to cooperate with the panel or if the parent does not agree with what is included in the expert opinion or objects to the opinion being forwarded to the designated educational institution; (c) by the head of the designated educational institution if in spite of the expert opinion the child is not enrolled or sent to the institution.
Besides parental involvement, a further guarantee against potential mistakes in the procedure is that under Article 20 Paragraph (4) of MKM Decree 14/1994., in the case of students with slight mental disabilities the expert panel shall review its opinion one year after its initial decision, and then in every second year until the child reaches the age of 12. After this time the review shall be carried out every three years.
3.3. Deficiencies and possible solutions
Thus, as we can see, the legal framework is relatively detailed and seems to contain safeguards that could in theory prevent the wide-ranging abuse of the institution. The Minorities Ombudsman’s comprehensive investigation of the problems came to the conclusion that “the relegation of children into special schools is [sufficiently] regulated. […] The violation emerges primarily in the course of implementation (Report..., 2000).”
The main reason for this is that if the parents are undereducated and unable to assert their rights, their involvement in the process means no real guarantee against abuses. They do not understand the procedure and – even if the information on available remedies formally takes place – they do not know whom to turn to. It often happens “that they simply acknowledge the expert opinion on the question of disability – they regard it as a decision that ‘may not be appealed against’. This is especially true for parents of Roma origin, who – according to our experiences – do not know that by signing the statement concerning the fact that they have been informed, they in fact decide about the future fate of their children (Report..., 2000).”
This kind of problem is of course very difficult to tackle through legislative measures. A closer control on the operation of the expert panels seems possible though. One field in which (legislative) improvement may be achieved is the determination of criteria for qualifying children as slightly mentally disabled. At present, the picture is not very clear in this regard. Under Annex 1 Point 3 of Government Decree 141/2000. on the Rules of Qualifying and Reviewing Severe Disability and the Payment of Disability Aid, a person with an IQ between 0 and 49 may be regarded as severely mentally disabled. In terms of Annex 1 of Decree 15/1990. of the Ministry for Social Affairs and Health on Qualifying and Verifying Severe Disability, a person shall be regarded as mentally disabled if his/her IQ is below 70. This decree however regulates the issue from the point of view of taxation (as tax deduction is available for severely disabled people), so its definition is not referential to expert panels. It is therefore, not clear on what (legal) basis expert panels qualify children as having severe, medium or slight mental disability.
“According to the World Health Organization’s pertaining convention, only children with an IQ under 70 should be sent to special schools for the mentally disabled. […] If we draw the line between normality and disability at IQ 70 and we took only the psychometric aspect into consideration, then only 48,3% of the special school population would qualify as mentally disabled, 50,7% would be on the line and 12% would be regarded as normal (Report..., 2000).”
Experts draw attention to the fact that – obviously – it is the IQ 70–90 zone with regard to which the most abuses and misjudgements may occur. In the lack of strict legal criteria, it may solely depend on the discretion of the members of the expert panel which children falling into this category are relegated to special schools and which are sent to normal elementary schools. And this is exactly where discriminatory patterns may emerge. We therefore suggest that the Minister of Education – based on the authorization contained in Article 94 Paragraph (1) point (d) of the Public Education Act – issue a decree on this question.
Another – not strictly legislative – measure (also proposed by the Minorities Ombudsman) that may be applied by the Ministry of Education is the elaboration of a procedure through which – in the framework of professional supervision – it can on a regular basis monitor and assess the work performed by expert panels (Report..., 2000).
4. Segregated schools for Roma children
4.1. Summary of the problem
A 2000 research by the Hungarian Institute of Educational Research provides convincing evidence that the degree of school segregation (concerning “normal” schools) has increased significantly during the past decade. The research concerning 192 elementary schools where the proportion of Roma pupils was over 25% or their numbers exceeded 100 in the 1992/93 school year shows that while in 1992 7,1% of Roma pupils studied in schools where they were in majority, today this percentage is 18,1. While numbers of pupils attending the surveyed schools have fallen overall, the absolute number of Roma children has increased. In a country-wide comparison 44% of Roma pupils study in schools where their proportion exceeds 25% or their number exceeds 100, while only 6,3% of non-Roma children attend such schools (Havas, 2000).
The primary factors leading to this increased separation of majority and minority pupils are not of legal nature. The development of segregated Gypsy schools is closely related to segregation in housing – the schools reflect local ethnic divisions. As a result of the spontaneous migration of the 1990’s the proportion of Roma population has significantly increased in the small settlements located in the poorer regions of the country and in the deteriorating quarters of bigger cities. Young, non-Roma families tend to move out from such areas, so the proportion of non-Roma students in the schools serving them, drops radically, leading to the development of segregated ‘Gypsy schools’ (Report..., 2002).
Another related factor in this increased distancing is non-Roma parents taking their children out of ‘Gypsy schools’. When due to the migration process described above, the proportion of Roma pupils starts rising in the school, even those non-Roma families take out their children who do not move out. Of the 192 schools examined in the aforementioned survey, in the case of 28 there was clear indication that although the given school was the only one in the given village or town, most non-Roma children living there were sent to schools located in different settlements (Havas, 2000).
As the Minorities Ombudsman points out, “the local governments and the schools often give in to the pressure coming from the local non-Roma population and play an active role in creating such situations (Report..., 2002).” An example can be what happened in Hajdúhadház, where majority parents actually demonstrated for the removal of a ‘Gypsy class’ from a school. According to a former teacher of the Földi János Elementary school, the town leaders suggested establishing a high school before the nearing elections. The new high school needed a building, so they convinced some Hungarian parents to protest for the removal of the older ‘Gypsy-classes’ to a school on the outskirts of town (Bernáth–Mohácsi, 2000).
Although this is again a phenomenon that is not strictly of legal nature, it bears relevance with regard to the legislative framework regulating the role of local governments and minority self-governments in education.
4.2. Legislative framework
Due to the normative per capita support provided by the state for the purposes of minority education (see more about this in the section dealing with segregated classes), schools and local governments (as their maintainers) are interested in organizing different forms of minority education in order to increase their income.
There are two basic forms in which such education may be organized: the educational institution may qualify as either an “educational institution participating in minority education” or as a “minority educational institution”. There is a statutory definition for the latter (under Article 121 Paragraph (6) of the Public Education Act, an educational institution may be regarded as a minority educational institution if (a) its deed of foundation refers to the performance of tasks related to national or ethnic minorities; (b) these tasks are actually performed by the institution; and (c) at least 25% of the children/pupils/students participate in the minority education), however, here are no clear cut criteria as to what constitutes an “educational institution participating in minority education”. From the case law of the Minorities Ombudsman, we can conclude that an educational institution may be regarded as such if its deed of foundation contains reference to tasks related to national or ethnic minorities and if the schools receives normative per capita support for minority education from the state budget (Report..., 2003).
Under Article 29 Paragraph (2) of Act LXXVII of 1993 on the Rights of National and Ethnic Minorities (Minorities Act), the appointment of the heads of minority institutions as well as the local government’s decisions concerning the education of people belonging to minorities require the approval of the local minority self-governments affected.
Article 102 Paragraph (10) of the Public Education Act expounds on this provision and enumerates all the acts for which the maintainer local government must acquire the approval of the concerned minority self-government. These are the same with regard to both educational institutions participating in minority education and minority educational institutions, with one exception: the head of a minority educational institution may only be appointed and removed with the approval of the concerned minority self-government, whereas no such requirement is needed in the case of heads of educational institutions participating in minority education. The approval of the minority self-government is required for both types of institution with regard to – among others – the following: the establishment and closing down of the institution; the amendment of its scope of activities; the adoption and amendment of its budget; the assessment of the professional activity conducted in the institution; the approval of its rules of operation; the approval of the institution’s educational program or pedagogical program, and the assessment of the implementation thereof.
This right of approval could serve as an effective tool in the hands of minority self-governments in the struggle against school segregation supported by local governments. However, some deficiencies of the legislative framework hinder its effective use.
A severe problem of the legislation in force is that it contains no provisions as to how the acquisition of the approval shall take place and what shall be done if the local government fails to acquire the approval of the minority self-government. The only procedural rule is set forth by Article 29 Paragraph (3) of the Minorities Act, which claims that “the entity vested with the right of approval shall make a statement within 30 days of the submission or the announcement of the request. Failure to comply with the deadline shall lead to the loss of this right.”
No provisions are in place to dissolve problems arising from the minority self-government’s refusal to give its approval. The Minorities Ombudsman suggested in this regard that a mediation procedure similar to the one set forth by the Public Education Act7 be prescribed by law for such occasions.
A further problem is that neither the Minorities Act, nor Act LXV of 1990 on Local Governments (Local Governments Act) contain appropriate sanctions for the event that the local government fails to acquire the minority self-government’s approval – such a sanction could be that decisions brought without the minority self-government’s approval shall be null and void.
The regulations in force make it possible to achieve the abolishment of decisions brought without the minority self-government’s approval, however, the procedure is rather protracted. Under Article 98 Paragraph (3) of the Local Governments Act, the regional administrative office (an administrative organ under the control of the Ministry of Interior) shall monitor whether the local government’s decision is in accordance with the law. If not, in terms of Article 99, it shall call on the local government to put an end to the violation (e.g. it may demand that the local government acquire the approval that it has failed to request). The local government shall notify the regional administrative office about its standpoint. If the local government disagrees and refuses to remedy the violation (e.g. by not withdrawing a decision delivered without the approval of the minority self-government), the regional administrative office may bring an administrative lawsuit against the local government. This does not in itself suspend the implementation of the decision regarded as unlawful by the regional administrative office, however, in the course of the lawsuit, the office may request the court to suspend the decision’s implementation.
4.3. A showcase of segregation – Jászladány
How all this is related to school segregation is sharply elucidated by the so-called Jászladány case.8 In early 2002, the Jászladány local government made a decision about renting out a part of one of the settlement’s three school buildings to a foundation that wished to launch a private school in the settlement. From the circumstances of the case, it is highly probable that this measure was intended to disguise an effort to create a separated school for non-Roma children. The expressly articulated objective of the private school’s establishment was to achieve that the approximately 70 pupils whose place of residence was Jászladány but went to school in other settlements would return to continue their studies in Jászladány.
Taking into consideration the problem described above, it is quite likely that these children were sent to study in schools outside the settlement, because in those institutions the proportion of Roma pupils was not so high as in Jászladány. In theory, the private school would have been open to all pupils, however, the HUF 3 000 (USD 13) tuition fee was clearly beyond the capacity of almost all the Roma families in the settlement. The building concerned by the rental was the most modern of the three buildings in which the Jászladány public school operates. Its gym would have also been given into the exclusive use of the private school, so those public school students who study in the other half of that building would have had to walk about a kilometer to the other gym located in one of the older buildings.
The rental fee paid by the private school to the local government would have been approximately HUF 40 000 (USD 174) per month, in return for which the local government would have undertaken the payment of the overhead costs (gas, electricity, water, etc.), which means that the local government would have in fact supported with a significant amount of money the operation of the private school which most of the Roma children could not have attended due to the financial limitations (and the money spent by the local government on the private school would by all probability have been drawn from the funds available for education, and thus for the education of these Roma pupils).
Before delivering its decision, the Jászladány local government failed to request and acquire the approval of the minority self-government, which, in fact strongly objected to the whole idea, warned of the discriminatory consequences on several occasions, and finally turned to the Minorities Ombudsman. The Ombudsman requested the regional administrative office to exercise its supervisory rights and call on the local government to withdraw its decision. A long and complex legal battle began with the local government, the mayor and the notary for, the Minorities Ombudsman, the Ministry of Education and the regional administrative office against the establishment of the private school. The school was prevented from starting its operation in September 2002 but started a new registration procedure for the 2003/2004 school-year (School at Jászladány, 2003).
It seems then that the minority self-government of Jászladány succeeded in taking action against school segregation, thus verifying the standpoint of those who say that the system of minority self-governments and their right to veto local government decisions that might effect the given minority adversely can provide a sufficient safeguard against segregating practices. However, the Jászladány case took a rather bizarre turn in the fall of 2002 at the minority self-government election: instead of the members of the old Roma minority self-government that tried to prevent the local government from setting up the private school, new members were elected. Out of the five members only one belongs to the Roma minority. The other four members are admittedly not of Roma origin, one of them being the mayor’s wife, who actually became the minority self-government’s president. The new minority self-government willingly gave its approval to the decisions necessary for launching the private school, so it would now be very difficult to find – formal – legal arguments against the school’s registration.
4.4. The position of minority self-governments
The Jászladány example highlights two problems: the more obvious one concerns the abuses of the minority election system, while the other one is related to the minority self-government’s independence from the local government.
The provisions regulating the elections for minority self-governments and local governments are set forth by Act LXIV of 1990 on the Election of Mayors and Local Government Representatives (Local Elections Act) and Act C of 1997 on the Election Procedure. The two elections are held together (on the same day and premises) and most of the rules governing their arrangement are identical. However, in some significant aspects, minority nominees are in a more favorable position: for instance, fewer citizens need to support their nomination and less votes are required for their election. This is the basis of the so-called “minority business”, i.e. when candidates misuse their minority identity for the sake of political or economic ambitions (Report..., 2003). An extreme form of this practice is when a person not belonging to a given minority runs for membership in the local minority self-government. A pertinent example of this so-called ‘cuckoo’ phenomenon is the case of the Jászladány Roma minority self-government. As opposed to some experts (e.g. the Minorities Ombudsman [Report..., 2000]), we do not believe that the election of a person not belonging to a given minority is in itself harmful, if that person is devoted to the case of that given minority and has some special (e.g. legal or administrative) expertise that may prove useful in the minority self-government’s work.9 This is the approach taken by the Local Elections Act, when its Article 50/B declares: any citizen may be nominated for the minority self-government elections, provided that he/she undertakes to represent a minority acknowledged by the Minorities Act (so it is not minority affiliation that the statute requires but the willingness to represent a certain minority).
The real problem is that members of the majority population are also entitled to vote on the minority self-government representatives. Under Article 50/C Paragraph (1) of the Local Elections Act, all persons entitled to participate in the local government elections may also take part in the election of the minority self-government. We firmly believe that this solution is not in line with the original idea lying behind the establishment of minority self-governments. We cannot in fact talk about self-governance if not only people belonging to the given minority can cast their votes on the body’s representatives. In Jászladány for example, the majority votes led to the replacement of a minority self-government that was doing its best against what it perceived to be a discriminatory measure.
This problem is practically impossible to solve on the theoretical level. In terms of Article 7 of the Minorities Act, it is the individual’s exclusive and inalienable to claim and declare affiliation with a national or ethnic group, minority. Furthermore, no one shall be obliged to make a statement on their minority affiliation. This means that – rightly and in accordance with Hungary’s constitutional and international obligations – no person or body may be authorized to qualify voters with regard to their minority affiliation and they may not be requested to make such a declaration either. Thus, in the course of minority self-government elections it is impossible to establish who is in fact eligible to vote. This can cause problems even if majority voters act bona fide. Without sufficient information they cast their votes on a “haphazard” basis. The names of the minority candidates (grouped on the basis of the minority they belong to) are listed in an alphabetical order on the voting sheet. The tendency is that those members of the majority population who cast a vote on minority self-government representatives tick the first three or five names without knowing anything about the candidates or the given minority.
Although dissolving the theoretical contradiction between the individual’ right to or not to claim his/her minority affiliation and the minority’s collective right to self-governance seems to be beyond the legislative potential, some practical legal techniques could be used to mitigate the problem. As early as 1998, the Minorities Ombudsman proposed a number of solutions, such as not holding the local government and the local minority self-government elections on the same day (or at least not in the same premises) or providing only those citizens with local minority self-government voting sheets who actually request it (Report..., 1999). We fully agree with the necessity of such amendments to the relevant laws.
A more general issue that is highly relevant from the point of view of the minority self-governments’ capacity to act against school segregation through their right to veto (i.e. to deny approval) is their independence from the local governments (which function as school maintainers in a great majority of the cases).
In this respect it is extremely important that the budgetary allocations earmarked in the annual state budget for local minority self-governments are transferred through the local governments, whose task in this regard is – in theory – restricted to forwarding the support in four installments due by 15 February, 15 May, 15 August and 15 November respectively10 and on the basis of an agreement of co-operation concluded with the minority self-government. The local government’s obligation to conclude such an agreement of cooperation with the minority self-government is set forth in Articles 66 and 68 of Act XXXVIII of 1992 on the State Budget (hereinafter: State Budget Act). However, as the Minorities Ombudsman points out (Report..., 2000), in practice this system is not always functioning properly, which can impact the minority self-governments’ independence, sometimes defining their loyalties and undermining their capacity to represent Roma interests effectively. A telling example was provided during an interview in August 2000 by the president of the Roma minority self-government in Hosszúpályi (where according to estimates every fifth Roma child begins his/her education in segregated schools), who confessed „they would kill us if we tried to change it”. As we saw, this is exactly what happened, figuratively, in Jászladány.
To sum it up, unless the dysfunctions of the electoral system are eliminated and the minority self-governments’ effective independence is guaranteed, they cannot act firmly enough to prevent those instances of school segregation, which may be attributed to reasons beyond spontaneous migration processes. We must also remember that – in fact – battle against discrimination should not be minority self-governments’ primary function, as they were originally set up to preserve the cultural traditions and identity of a minority.11
5. Segregated classes for Roma children
5.1. Summary of the problem
Due to the per capita support system of education, schools (and local governments as their maintainers) are interested to have as many students as possible.12 Therefore, to prevent the above described ‘emigration’ of non-Roma children from schools where the proportion of Roma children starts to increase, some schools set up a class system making the segregation of Roma pupils possible. There are three basic forms of class segregation: (a) special remedial classes, usually with a lower requirement level, poorer educational work and a disproportionate number of Roma pupils; (b) faculty classes offering extracurricular education (e.g. language teaching, advanced mathematics, etc), usually reserved for non-Roma children; and (c) classes set up by misusing the institution of “Roma minority education”.
The 2000 research by the Hungarian Institute of Educational Research examined the proportion of Roma children in remedial and special faculty classes at the 192 surveyed schools. It showed that while the proportion of Roma pupils was 45.2% in normal curriculum classes, their percentage in mathematics faculty classes and language faculty classes amounted to 16.2% and 17.5% respectively. In the light of the above it shall also come as no surprise that their proportion was 81.8% in remedial classes (Havas, 2000).
There is also strong evidence that segregation is in part institutionalized by the misuse of funding for special measures for Roma education. Before the significant amendments of late 2002, state funding was available to local governments on an ‘ethnic quota’ basis to establish special classes for the Roma in the framework of so-called “Roma minority educational programs”. The program was supposed to contain two elements: strengthening the children’s Roma identity on the one hand and a catch up element on the other. In his 2000 report the Minorities Ombudsman bitterly summarized his main experiences concerning Roma minority educational programs: “We would not like to fall into the error of exaggerating generalization but we must say that in several cases the local governments – in cooperation with the schools – only organize Roma minority education to obtain the supplementary normative support and exploit this form of education to segregate the Roma pupils in a – seemingly – lawful manner (Report..., 2002).”
5.2. Special remedial classes
Children may be placed in separated remedial classes within “normal” schools on the basis of the expert panel’s opinion (in the case of the child’s slight mental disability) or on the basis of the opinion of the educational advice center if the child is not mentally disabled but finds it hard to cope with school due to learning or behavioral difficulties, or other problems with fitting in.
In the former case, the rules described in Section 2 apply. With – theoretically – strong parental involvement, the expert panel conducts an examination and in its expert opinion it may conclude that the child’s mental disability is of the extent that it does not require attendance in a special school, however, completely integrated education is not recommended either. In such cases the child may be sent to a normal school, where special remedial classes are organized on the basis if Article 66 Paragraph (5) and Annex 3 of the Public Education Act.
Similar to the activity of expert panels, the procedure conducted by educational advice centers is also legally safeguarded against abuses. The guarantees are similar: the examination may only be launched upon the parent’s request, or his/her consent (Article 22 Paragraph /3/ of MKM Decree 14/1994.); the parents shall be provided with a copy of the center’s opinion and shall be informed that remedy might be sought against the opinion with the competent notary (Article 22 Paragraph /7/); the opinion shall be regularly reviewed (Article 23 Paragraph /5/); and so on.
Like in the case of special schools, these legal guarantees cannot fully prevent misuse: remedial classes are also often used to justify segregation of Roma pupils. A very telling example is provided in the 2002 report of the Minorities Ombudsman about a school where out of the 28 children with regard to whom the expert panel established the necessity of special education, 24 are of Roma origin. These children attend two special classes, whereas the four non-Roma children requiring special education are taught in an integrated manner in normal curriculum classes (Report..., 2003)!
The aforementioned case also highlights the limitations of parental involvement. In the case of one of the non-Roma children, the expert panel originally indicated that the child ought to attend the school’s special class. In accordance with the provisions of MKM Decree 14/1994., the parent submitted an appeal with the local notary, who changed the opinion and allowed the child’s integrated education (Report..., 2003). As opposed to this, the parents of the Roma children relegated to the special class did not make use of their right to remedy. It is obvious that due to their educational disadvantages and restricted assertive abilities, the majority of Roma parents find it difficult to utilize the legal safeguards. Therefore, the provisions pertaining to the professional supervision of educational institutions at the local and institutional level are of outstanding importance.
In terms of Article 107 Paragraph (1) of the Public Education Act, professional supervision may be carried out by experts who are included in the National List of Experts. The list is maintained by the National Educational Center for Assessment and Examinations (hereinafter: OKÉV), a background institution of the Ministry of Education. Under Paragraph (3) of the same Article, the supervision is carried out on the basis of an agreement between the expert, the head of the educational institution and the entity that has initiated the supervision. In the agreement, the parties establish the duration, form and methods of the supervision, as well as the way in which the concerned entities may express their opinion about the conclusions of the supervision. Paragraph (5) prescribes that if a concerned entity disagrees with the conclusions, it may request the supervision’s review in the framework of another supervision. Under paragraph (6), based on the supervision’s conclusions, the maintainer of the educational institution shall take the necessary measures, or call on the institution’s head to take them.
The crucial question concerning professional supervisions is who is entitled to initiate them at the local and institutional level. Under Article 107 Paragraph (8) point (c) of the Public Education Act, the local government and the minority self-government may initiate professional supervision at the local level, while point (d) provides the maintainer of the educational institution (most often the local government) with the right to initiate supervision at the institutional level. The circle of those entities which may initiate institutional level supervision is extended by Government Decree 105/1999. on the National Educational Center for Assessment and Examinations, Article 4 Paragraph (1) point (b) of which claims that OKÉV may conduct local and institutional level supervision upon the request of the local minority self-government as well. This possibility can prove very important, since – as the Minorities Ombudsman points out – “the local government is often counter-interested in a professional supervisory procedure” (Report..., 2001). As we saw in Section 3, it is often the local government that we find behind discriminatory educational practices, whereas the right to initiate professional supervision could provide minority self-governments with another useful instrument in acting against segregation. This however requires – as a crucial precondition – the effective independence of minority self-governments from local governments, which is often lacking due to the reasons outlined in Section 3.
Another problematic aspect is that in terms of Article 107 Paragraph (8) of the Public Education Act, it is the entity initiating the professional supervision that has the obligation to pay the costs arising thereof. This can prove to be a significant financial barrier preventing local minority self-governments from being able to make use of this opportunity. Furthermore, not every settlement where minority groups live has a minority self-government. In such settlements, the local government is the only entity that is authorized to initiate professional supervision.
Due to these reasons, in his 2000 annual report the Minorities Ombudsman suggested that the Ministry of Education (which – under Article 107 Paragraph (8) point (a) – at present is only entitled to initiate professional supervision at the national, regional and county level) be vested with the right to initiate local and institutional level supervision as well (Report..., 2001).
Another solution may be to authorize the Equal Treatment Committee (see Section 1) to initiate professional educational supervision if the suspicion of discriminatory practices or segregation arises, and to provide the body with the necessary resources so that it would be able to finance such supervisions.
5.3. Misuse of the Roma minority education program
Under Annex 2 point 1 of Decree 32/1997 of the Ministry of Education on the Guidelines for the Kindergarten Education of National and Ethnic Minorities and the Guidelines of School Education of National and Ethnic Minorities (hereinafter: MKM Decree 32/1997), four forms of minority school education exist: (a) education in the mother tongue (all subjects are taught in the minority language with the exception of Hungarian language and literature); (b) bilingual minority education (education is bilingual upon the condition that – besides the minority language and literature – at least three subjects are taught in the minority language); (c) language teaching minority education (besides the subjects taught in Hungarian, the minority language and literature are taught as a subject); and (d) Roma minority education. This form of education is based on Article 45 Paragraph (2) of the Minorities Act, which declares that special educational conditions may be created in order to decrease the educational disadvantages of the Roma minority. A lot of – hopefully positive – changes have taken place with regard to this educational form recently. As it is impossible at this point to assess the results, we will constraint ourselves to describing the situation that prevailed before the changes and to briefly outlining the new solutions.
Before Decree 58/2002. of the Ministry of Education amended MKM Decree 32/1997., the Article on Roma minority education ran as follows.
(1) The Roma minority education guarantees that the Roma students be acquainted with the values of the Roma culture [...] Teaching the Roma language is not an obligatory element of this program, but if the parents request so, the Roma dialect they speak shall be taught to the children. The education shall promote the Roma students’ success in school and shall decrease their potential disadvantages. It shall guarantee the teaching of facts concerning the situation, rights, organizations and institutions of the Roma. It shall through the means of pedagogy – but without expectations concerning assimilation – promote the integration of the Roma.
(2) The obligatory elements of Roma minority education are: Roma anthropology and skills development facilitating success in the school. Furthermore – depending on the students’ level of knowledge, skills, ethnocultural background and the possibilities of the school – it shall contain three of the following fields:
a) development in different subjects;
b) development of minority self-knowledge;
c) communication and socialization development;
d) regularly organized Roma cultural activity;
e) the facilitation of individual talents. [...]”
Thus, as we can see, the old form of Roma minority education was two-sided: it contained cultural education and a “catch up” element.
Under Article 43 Paragraph (4) of the Minorities Act and Annex 3 of the Public Education Act, a Roma minority education program may be launched in a school if the parents of at least eight students belonging to the Roma minority requested so (initiation by parents of eight minority students is the requirement set for all forms of minority education). The program – in accordance with Article 102 Paragraph (2) point (e) of the Public Education Act – is approved by the school’s maintainer (i.e. the local government in most cases), and, under Article 102 Paragraph (10), the consent of the local minority self-government (or by the Hungarian Roma Self-government if there is no local minority self-government) shall also be acquired. The regulation allows for the setting up of separate classes for children participating in the program. Under Article 3 Paragraph (2) point (a), sensitive data may only be processed if the concerned person gives his/her consent in writing. As ethnic affiliation is sensitive data, and instead of the concerned minor his/her legal guardian, i.e. the parent is entitled to give the necessary consent, no pupil may participate in such programs without the approval of the parents.
Before the reform of the support system, the schools running Roma minority education programs received a normative support per year after each child (the exact amount being defined in the Act on the annual state budget). This amount was transferred to the local government maintaining the school and had to be – at least in theory – spent on providing the personal and material conditions of this special form of education.
Soon it became obvious and widely acknowledged among experts that the legal loopholes and the lack of adequate control made Roma minority educations programs a primary target of abuses. Its regulation made it possible to formally lawfully segregate Roma students and to receive additional funding for all this! In 2000, the Minorities Ombudsman conducted a comprehensive survey into the issue (Report..., 2001). His main conclusions were the following: (a) in most cases only the catch-up element is realized and the obligation to provide the pupils with knowledge on Roma culture is completely neglected; (b) in some cases parallel to the organization of Roma minority education, other subjects (such as foreign languages and computer science) disappear from the curriculum of the Roma pupils; (c) the proportion of not properly qualified teachers is higher in this form of education than in ordinary primary school education; (d) in several cases it is not the parents who initiate the organization of such education: they are sometimes not even asked for their approval but in most cases they are not informed appropriately about what this form of education comprises (in one school for instance, the form to be signed by parents only contained the number of the pertaining Article without providing any information as to its contents) (Report..., 2001).
What we put forth above about professional supervisory mechanisms and their practical implementation, is also relevant with regard to Roma minority education programs. In theory the monitoring of such programs is performed by the maintainer, which in most cases means the local government. Taking into consideration the experiences concerning the role some local governments play in instances of educational discrimination, it shall come as no surprise that serious doubts have been raised by the Minorities Ombudsman, Roma organizations and others, as to the efficacy of the programs and the use of funds (Report..., 1999; Kertesi 1996). As one expert pointed out “due to their uncontrolled utilization of state funding, several local governments simply ‘gobble up’ the supplemental support (Oppelt, 1997).”
It was therefore high time that the system was reconsidered and reformed. Let us now see what were the most significant changes. Decree 58/2002. of the Ministry of Education on the Amendment of MKM Decree 32/1997. redefined the notion of Roma minority education.
(1) The Roma minority education guarantees that the Roma students be acquainted with the values of the Roma culture [...] It shall guarantee the teaching of facts concerning the situation, rights, organizations and institutions of the Roma. It shall through the means of pedagogy – but without expectations concerning assimilation – promote the integration of the Roma. Teaching the Roma language is not an obligatory element of this program, but if the parents request so, the Roma language (Romani, Beash) shall be taught to the children.
(2) The obligatory elements of Roma minority education are: Roma anthropology, development of minority self-knowledge and regularly organized Roma cultural activity. [...]”
If we compare this text to the one it has replaced, we can see that all the “catch up” elements have been deleted and only cultural education has remained. This is the result of the recognition that it is both degrading and counterproductive to mix up the teaching of a rich minority culture with educational efforts to decrease social disadvantages (even if the effort is real and not just a pretext for segregation). The new concept however recognizes that due to the special situation of the Roma minority and also the lack of standardization of the Roma languages, as well as the lack of human and material resources (e.g. textbooks for different subjects in Romani or Beash), the separate category of Roma minority education needs to be maintained and cannot at this time simply be merged into the other three forms of minority education.13
At the same time, the necessity to address social disadvantages a new educational form is created. Decree 57/2002. of the Ministry of Education inserted Article 39/D into Decree 11/1994. of the Ministry of Education on the Operation of Educational Institutions (hereinafter: MKM Decree 11/1994). Paragraph (1) of this new Article claims that with the aim to counterbalance the student’s social or developmental disadvantages, educational institutions may organize a skills development training, in the framework of which the student is assisted in developing his/her talents, catching up with the others, and so on. It is important that under Paragraph (3) the education of students participating in the skills development training shall be conducted in an integrated manner, together with other students. In terms of Paragraph (5), the student may participate in the training with the parent’s written approval, if (a) his/her parents’ highest level of education is elementary and (b) the parents are entitled to receive a supplementary family allowance after the child.14 The head of the educational institution may allow the participation of children who meet only one of the criteria, but the percentage of such children in the program may not exceed 10%. Under Paragraph (7) the progress made by the child is monitored on a regular basis.
In order to make schools interested in integration instead of segregation, Decree 57/2002. introduced another new educational form (to which a per capita support was also attached in order to provide financial motivation – see below). Article 39/E of MKM Decree 11/1994. sets forth the rules of the so-called integration training. Under Paragraph (1), such a training may be organized for those students who participate in the skills development training and attend the same class (or group) as those students who do not participate in such training. This form of education may be launched at first and fifth grades (and at the ninth grade of vocational school), and the rules pertaining to it are identical with the provisions regulating the skills development training (e.g. with regard to the conditions of participation).
This new perception is also reflected in the changes of the support system. Interestingly, as the new form of Roma minority education may be implemented in the 2003/2004 school year for the first time (since the amendments were adopted in December 2002, i.e. four months after the beginning of the 2002/2003 school year), the budgetary Act for the year 2003 contains the per capita support for both the old and the new system.
To understand what has changed, let us first see how the 2002 budget regulated the issue. In terms of Annex 3 point 24 (c) of Act CXXXIII of 2000 on the 2001 and 2002 Budget of the Republic of Hungary, the local government was entitled for HUF 33 000 (USD 143) per year after each child participating in language teaching minority education or Roma minority education in an educational institution maintained by the local government. (For the two other types of minority education – education in the mother tongue and bilingual minority education – the norm was HUF 49 500 /USD 215/.) Under point 24 (b) the normative per capita support for students in a disadvantaged position (established by the notary upon the proposal of the school’s principal and on the basis of the register of children entitled to supplementary family allowance) was HUF 17 000 (USD 74) per year per child participating in small-group remedial education in the school maintained by the local government.
In terms of Annex 3 point 24 (bb) of Act LXII on the 2003 Budget of the Republic of Hungary, local governments may for the last time apply for the above mentioned type of per capita support after students in a disadvantaged position – HUF 17 000 (USD 74) – for the first eight month of the budgetary year (i.e. for the last months of the 2002/2003 school year). After this time – i.e. from the beginning of the 2003/2004 school year – the same amount can be received after each child participating in skills development training as regulated under Article 39/D of MKM Decree 11/1994. Under point 24 (bd), HUF 51 000 (USD 222) shall be paid per year after each child participating in integration training as set forth by Article 39/E of MKM Decree 11/1994. After each child only one of the two aforementioned types of support may be requested.
Under Annex 3 point 24 (ca) of the 2003 budgetary Act, local governments may for the last time apply for the old type of per capita support for Roma minority education – with an increased amount of HUF 44,000 (USD 191) – for the first eight months of the budgetary year. From the beginning of the 2003/2004 school year, the Roma minority education programs shall be supported like other minority education programs (HUF 44 000 /USD 191) for students participating in language teaching minority education – including the Roma language – and HUF 66 000 /USD 287/ for students participating in mother tongue and bilingual minority education) with the exception that if the given program contains no language teaching element (which, as we saw above is possible), the number of the children participating in the program shall be divided by two when calculating the number of children after whom support may be requested. (This provision clearly aims at motivating schools to include language education in Roma minority education programs.)
Point 1 (l) of the Annex’s supplementary provisions enumerates the conditions which must be fulfilled if the local government wishes to request support: (a) the deed of foundation of the educational institution refers to the performance of tasks related to national or ethnic minorities; (b) the minority education is organized on the basis of the written request submitted by the parents of at least eight children belonging to a certain national or ethnic minority; (c) if the educational institution is located in a settlement where there is no local minority self-government, the approval of the national minority self-government as to whether the educational institution is performing tasks related to national or ethnic minorities.
This is the legislative framework of the new approach, which separates the catch up element from the cultural element in the education of Roma, or to be more exact: makes the catch up element completely independent from the Roma origin of the students who may need it due to their social advantages.
Let us now examine what criticisms are voiced in connection with the new solutions and what further problems may arise. In November 2002, the Minorities Ombudsman organized a national forum on minority education. At this forum it was emphasized that the conditions set for participation in skills development training and integration training (i.e. that the student may participate if (a) his/her parents’ highest level of education is elementary and (b) the parents are entitled to receive a supplementary family allowance after the child) and thus also for requesting the related normative support may undesirably narrow down the scope of implementation, since – from the point of view of the way of living and employment opportunities – there is no big difference between parents with elementary education and parents who accomplished vocational school. Furthermore, there are several families which would be entitled to receive a supplementary family allowance, but do not know about this possibility or fail to acquire the allowance due to their low ability to assert their rights (Report..., 2003). We have to see how the practice evolves to assess the validity of these concerns.
A further problem is that the institution of Roma minority education can still be misused to segregate Roma children in schools. Unless the system of professional supervision is strengthened, there are still no guarantees for the program’s quality (although the elimination of the remedial element makes it more difficult for schools to provide substandard education), and the problem that parental request and approval may easily be elicited from undereducated parents improperly informed by the school, is still unresolved.
6. Roma children as private students
A relatively new method of separating problematic Roma children has evolved recently: declaring them private students and exempting them from going to school. In terms of Article 69 Paragraph (3) of the Public Education Act, private students must be exempted from all class attendance. Article 21 Paragraph (4) of MKM Decree 11/1994. sets forth that private students fulfill their educational obligation by taking exams at the end of each semester before an independent panel.
There are two ways in which a child can become a private student. Under Article 7 Paragraph (1) of the Public Education Act, depending on the parent’s choice, the child’s educational obligation may be fulfilled by school attendance or as a private student. The other case is when the child has some kind of disability, learning or behavioral disorder, and – in accordance with what is set forth in Section 2 – the expert panel decides that he/she shall become a private student. In the former case it is the parent’s obligation to prepare the child for the exams, whereas in the latter, this obligation remains with the school (in terms of Article 23 Paragraphs (2) and (3) of MKM Decree 11/1994.).
In 2001 the Minorities Ombudsman started receiving complaints claiming that in some schools the parents of “problematic children” are persuaded to request that the child be declared a private student. Sometimes parents are even threatened that they either do so or the child will be sent away from the school. Therefore, the Minorities Ombudsman requested the Ministry of Education to introduce safeguards that may prevent such abuse. In accordance with the request, Decree 4/2001. of the Ministry of Education inserted a new provision into MKM Decree 11/1994. (Article 23 Paragraph (1)), which claims that if the parent claims that the child wishes to become a private student, the school’s principal shall within three days request the opinion of the local child care service, which shall respond within 15 days.
In his 2002 report the Minorities Ombudsman states the following: „In spite of the amendment, we still receive complaints from this field. The local government, the school and the child-care service usually stand on the same side. Numerous complainants claimed that the child care service [...] contributed to the pressure from the school and the local government with its consenting opinion. The reason behind the phenomenon is to be found in the often helpless situation of the Roma parents and in the approach that can only handle differences through the means of segregation (Report..., 2003).”
We believe that this task should be delegated to an organ that is not bound by local networks and relations, such as OKÉV for example.
7. Summary of suggestions
- The notary’s role in implementing petty offense sanctions for cases of educational discrimination ought to be taken over by an organ not bound by local interests.
- We suggest that the Minister of Education – based on the authorization contained in Article 94 Paragraph (1) point (d) of the Public Education Act – issue a decree on the criteria for qualifying a child as slightly mentally disabled.
- The elaboration of a procedure through which – in the framework of professional supervision – the Ministry of Education could on a regular basis monitor and assess the work performed by expert panels would also be desirable.
- A mechanism ought to be involved to ensure that parents involved in the procedure of the expert panel clearly understand their rights, the procedure and its consequences. The minority self-governments may take a role in the process.
- Legislation ought to be adopted to regulate the process through which the local governments acquire the approval of the minority self-government for decisions concerning minority education. Special attention should be paid to conflict resolution.
- Measures should be taken to separate – in time and/or space – the local government elections and the local minority-self government elections, so as to reduce the chances of abuse and decrease the number of majority votes cast on minority representatives.
- In order to create real independence for local minority self-governments, the present budgetary arrangement that forwards their state support through local governments ought to be altered.
- The Ministry of Justice and/or the future Equal Treatment Committee ought to be vested with the right to launch institutional level professional supervision of educational institutions if the suspicion of discrimination arises. Furthermore, minority self-governments could be exempted from paying the costs of professional supervision if it is launched due to the suspicion of discriminatory practices.
- In due time it ought to be reviewed whether the conditions of skills development training and integration training have been determined widely enough to reach all the concerned children.
- Safeguards for effective parental involvement should be created in initiating Roma minority education programs and allowing the child’s participation in such programs (also see point 3).
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