I never believed that racial segregation could be legalized in the XXI century Europe. It seems that I was wrong as the Hungarian Government just moved in that direction. The Orban cabinet is not only undermining democracy and rule of law but remembers us of Jim Crow in early XX century Deep South US. His cabinet is about to make segregation of Roma children within the educational system lawful!
I spoke out against Roma school segregation in the last 13 years and I spent more than 3 years researching school desegregation policies. Hungary was leading the group of countries that joined the Decade of Roma Inclusion in regard to Roma school desegregation measures. Moreover, it was the only country that moved from pilot projects and isolated initiatives to adopting a comprehensive policy framework to combat school segregation. This was shown by the Decade Watch reports from 2007, 2008 and 2010.
In the book I edited, I argued that racial segregation should be defined as a special form of discrimination as it is the case with victimization or harassment. I used EU anti-discrimination law – Race Equality Directive (RED) – to show that Roma school segregation could be argued both as direct and indirect discrimination. The European Court of Human Rights (ECtHR) was inconsistent in the tests it used in the racial segregation cases, supporting the argument that ethnicity based school segregation is indirect discrimination. My point was that Roma children were separated from their peers in most of the cases due to some features of their ethnicity (direct discrimination) and not based on a neutral criterion that affects them disproportionately (indirect discrimination). Thus, Roma school segregation is rather a direct discrimination. By acknowledging that school segregation constitutes direct discrimination, the ECtHR would have set higher standards for protection against segregation for Roma children as it is under current jurisprudence. Under the RED, direct discrimination could be justified just in two cases: genuine professional qualifications or positive measures. Indirect discrimination could be justified under the proportionality test – if the aim is legitimate, necessary in a democratic society and if the means employed to achieve the aim are reasonable.
The recent legislative changes promoted by Hungarian Government proved me wrong. In my opinion, it was obvious that school segregation is in most of the cases direct discrimination, receiving a higher protection by the law, as segregation does not constitute genuine professional qualification nor it could be regarded as positive measures. That’s exactly what the Hungarian Government did: defining Roma school segregation as positive measure!
The Government used the concept of “closing the social gap” and transformed it into a legal concept. The Government used this concept first time in a policy document – its strategy for Roma inclusion – although translated into English as “social inclusion”. During the recent amendments of the new Constitution (in less than 2 year amended four times already!) the “closing the social gap” concept was introduced in the Constitution! This step was followed by an amendment to the law on equal opportunities amending the clause on positive measure with the concept of “closing the social gap”. Thus, the door was open for those schools that segregate Roma to justify separation as an attempt to close the social gap between Roma pupils and their peers. Some civil society organizations protested against the intentions to amend the equal opportunity law. Their criticism could be regarded as unsustainable. However, Hungarian officials made clear their intentions recently.
According to Hungarian Civil Liberty Union, the State Secretary for Education declared in a recent press release that “The Hungarian Government starts with the assumption that closing the achievement gap for the disadvantaged, including the Roma, requires assessing and addressing the problems facing an individual. We therefore support every institution which enables students with disadvantaged backgrounds to close the achievement gap, even if the institution only educates Roma children.” This statement leaves no doubts that the intention of the Hungarian Government was to make school segregation lawful!
I do recognize that in my analysis of segregation as a legal concept I failed to foresee such developments. I am wondering where are the limits of the Hungarian Government “creativity”. We shall see it sooner or later.