In infringement proceedings before the Court of Justice of the European Union (CJEU), Advocate General Tamara Capeta issued her opinion stating that the Slovak Republic systematically and persistently segregates Roma children in schools and has failed to fulfill its obligations under the Racial Equality Directive (RED). 

In her opinion, the Advocate General stated:

“It is impossible to ignore the sad fact that every year in which segregation persists, every group of Roma children affected by this unfavorable treatment loses a chance for their future. This is difficult, if not impossible, to remedy.”

The Advocate General proposed that the Court should rule that, by placing a disproportionately high number of Roma children in special schools or special classes, or in separate classes in mainstream schools or in special schools, it has systematically and persistently failed to fulfill its obligations under Article 2(1) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

The Commission explained that it had decided to take legal action against Slovakia because it had found that no significant progress had been made in eliminating discrimination against Roma children. Specifically, it claims that Roma children are significantly more likely than other children to be placed in special schools or classes for children with mental or other disabilities and that they are segregated from other children in primary schools – either in schools exclusively for Roma, in separate classes or on separate floors of schools, or even in school canteens.

The Commission’s main arguments are therefore that no progress has been made in ending the disproportionate placement of Roma children in special schools or in desegregating Roma children in mainstream education. The Commission considers the measures taken by the government to be insufficient or poorly enforced and further argues that these measures have not yet succeeded in eliminating or even reducing the level of discrimination against Roma children in Slovak education.

Obligation to achieve results

According to the Racial Equality Directive, the Advocate General emphasized that it is an obligation to achieve a result; the government’s arguments about the measures taken are not sufficient to defend itself if the result has not been achieved. This obligation implies a positive commitment to eliminate discrimination, which is also in line with the case law of the European Court of Human Rights in cases of school segregation of Roma children.

Furthermore, the Advocate General rejected the government’s arguments that it cannot be held responsible for segregation that is beyond its control, such as the so-called “white flight” (the departure of non-Roma pupils from schools), or that schools exclusively for Roma are the result of territorial segregation.

Positive obligations to prevent discriminatory consequences

The Advocate General emphasized that school segregation cannot be justified by the existence of broader racial segregation in society and that, under the RED, Member States have a positive obligation to adopt and enforce measures to prevent school segregation arising from prejudices rooted in society. She concluded that the Commission had sufficiently demonstrated that there was a widespread practice of segregating Roma children in separate classes or schools and that the Slovak Republic had not refuted these findings, and that such segregation was not justifiable.

Conclusion: 

The opinion of the Advocate General only confirms what we have been arguing for a long time in the Advisory Center in the strategic court cases we have been conducting and refutes the defense of the Ministry of Education. 

If the court agrees with the Advocate General’s argument, we believe that it will issue a decision that will provide a clear and strong impetus for real systemic solutions in the field of education for Roma children in Slovakia. Such a decision could finally force the government to adopt and consistently enforce effective measures that will lead to the elimination of school segregation and ensure equal access to quality education for all children, regardless of their ethnic origin. We believe that the Slovak Republic will be obliged not only to declare but also to actually implement the principle of equality and end the long-standing practice of discrimination against Roma children in education. This decision should be an important step not only for desegregation, but also for the future of our society, where every child will have the opportunity to develop their potential in an inclusive and fair school environment.