European Court of Human Rights Overlooks Right to Inclusive Education for Children with Disabilities

Many children with disabilities throughout the world are denied the right to education.  Further, in countries where they do receive education it is often in segregated settings, away from their peers. Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD) addresses education for persons with disabilities and requires States Parties to adopt inclusive education systems. Inclusive education promotes the education of all children in the same setting with reasonable accommodations that are tailored to the individual needs of students with disabilities. 

The adoption of the CRPD is starting to generate national and international case law that sheds light on long standing discrimination against persons with disabilities in the education sector.  Courts should avoid reinforcing outmoded ideas and stigma against one marginalized group when considering the human rights of another.  A recent decision of the European Court of Human Rights brings this particular concern to the fore.

Horváth and Kiss v Hungary, a case before the European Court of Human Rights (ECHR), involved two young men of Roma origin who argued that their placement in separate schools for children with mental disabilities amounted to discrimination in violation of the European Convention on Human Rights. The Court ruled in favor of the applicants, finding violations of Article 2 of Protocol No. 1 (right to education) and Article 14 (prohibition of discrimination) of the Convention. The Court highlighted that Hungary has a long history of placing Roma children in special schools and that the authorities failed to take into account their specific needs as members of a disadvantaged and historically marginalized group. As a result, the applicants were isolated and received an inferior education, making their integration into mainstream society difficult.

Horváth and Kiss v Hungary focuses on the restricted opportunities of two Romani children as a result of their placement in segregated schools that failed to accommodate their needs and provided them with a substandard education. Ultimately, one applicant was unable to become a dance teacher and follow the same career path as his father, and the second applicant was precluded from becoming a car mechanic. The Court rightly underscored both the applicants’ inability to access mainstream education and the impact of inferior curriculum on their future employment opportunities. At the same time, the Court overlooked the implications of their findings about segregated schools for children with disabilities. If the Court found that the special schools offered a substandard education with inferior curriculum then why did they only focus on the violations that the Romani students experienced? The case fails to address how the rights of children with disabilities continue to be violated in segregated schools.  The ECHR has repeatedly shied away from the underlying issue—that special schools violate the right to inclusive education for all children, including children with disabilities.

The case is reminiscent of another situation in which human rights activists decried the detention of political prisoners in psychiatric hospitals in the former Soviet Union where they were subjected to forced ‘treatment’ and horrific conditions while ignoring the rights of persons with disabilities who were experiencing the same violations.  The Court in Horváth and Kiss v Hungary did not address, even in passing, the placement of children with disabilities in segregated schools, which the Court acknowledged isolated and undermined future opportunities for the two Romani children. 

Denial of equal education to an ethnic minority is a legitimate concern; nevertheless, it is important to recognize that segregated, poor quality schools benefit no one.  The Court missed an opportunity to highlight the right to inclusive education outlined in the CRPD and failed to address the overarching issue that special schools for students with disabilities violate international and regional human rights standards.  

Please see Human Rights. Yes! Action and Advocacy on the Rights of Persons with Disabilities for more on the right to inclusive education for students with disabilities.