Reaching the marginalized: EFA global monitoring report, 2010; 2010

01CHAPTER 32Education for All Global Monitoring Report0India now legallyrequires statesto provide freeeducationthe marginalized. Ratification of United Nationsconventions often fails to lead to action that helpsthe marginalized. Part of the problem is that thecommittees overseeing the conventions have forthe most part failed either to hold governmentsto account or to provide transparent and publicassessments of national policies. The Committeeon the Rights of Persons with Disabilities, theindependent body of experts overseeing thenew convention, needs to provide a more robustdefence of human rights entitlements.National legal systems have played a crucialrole in addressing equity and marginalization ineducation. A landmark ruling in the developmentof civil rights in the United States was the 1954decision in Brown v. Board of Education. TheSupreme Court determined that laws separatingchildren of different races into different schoolsviolated the equal protection clause of theAmerican constitution. The principles applied inthis case were subsequently extended to challengesegregation in other areas. Brown thus servedas a milestone in the struggle of African-Americansto gain equal civil and political rights.Recourse to law offers marginalized groups anopportunity to contest discriminatory andinequitable practices. As was the case with Brown,legal rulings can have wider importance becauseof the general principles they establish. To takeone example, the European Court of Human Rightshas ruled that the Czech Republic’s treatmentof Roma children is not legal because the policiesamount to de facto segregation (Box 3.20). Inthe United States, education campaigners havemounted legal challenges aimed at securinggreater equity in the distribution of public finance,along with wider institutional reforms (Box 3.21).Both instances illustrate the importance of legalentitlements that can be used to hold governmentsaccountable. Many countries’ constitutions includethe right to free, non-discriminatory education forall, but constitutional principles are not alwaysenforceable. Article 45 of India’s constitutionmentions ‘free and compulsory education for allchildren’ up to 14 years but this ‘directive principle’could not be enforced in court. The Right ofChildren to Free and Compulsory Education Actadopted in 2009, however, now legally requiresstates to provide free education to children aged 6to 14 and reserves 25% of private primary schoolplaces for disadvantaged children (Economic andPolitical Weekly, 2009; India Ministry of Law andJustice, 2009).The entitlement to a formal identity is a criticalasset for achieving greater equity in education.The Convention on the Rights of the Child requiresall signatories to guarantee the formal identity ofchildren through birth registration. Yet UNICEFBox 3.20: Roma children’s right to education — using the law to challenge the stateThe European Court of Human Rights has ruled on severalcases in which governments have been accused of violatingthe education rights of Roma children. Echoing themesraised in Brown v. Board of Education, the court has appliedthe principle of non-discrimination to cases of segregation.Roma children across Europe are often assigned to ‘specialschools’ with little attention to their education needs.Cultural bias and discrimination by teachers and educationauthorities is widespread. In D. H. and others v. the CzechRepublic the court was asked to pass judgment on a casebrought by eighteen Czech nationals of Roma origin livingin the Ostrava region of the Czech Republic who had beenassigned to schools for children with learning difficulties.Represented by the European Roma Rights Centre, theplaintiffs argued that the assignment was discriminatoryand therefore contravened the European Convention onHuman Rights. Evidence was presented that 56% of thechildren enrolled in special schools in Ostrava were Roma,and that half of all Roma children attended such schoolscompared with less than 2% of non-Roma children.In 2007 the court ruled that such statistics, althoughnot completely reliable, established a presumption ofindirect discrimination. This shifted the burden of proofto the defendant, who failed to show that the differencein treatment had an objective and reasonable justificationunrelated to ethnic origin. The court ruled that theassessments through which Roma children were selectedfor special schools were flawed, notably in failing toconsider linguistic and socio-economic conditions.How successful was the case in addressing Romamarginalization? The trial provided a focal point forRoma and wider human rights groups and the judgmentestablished an important principle, but the EuropeanRoma Rights Centre has claimed that the Czech authoritieshave done little since to address segregation.Sources: de Beco and Right to Education Project (2009);European Roma Rights Centre (2008).204