By Štěpán Drahokoupil, Advocacy Officer, Open Society Fund Prague
In 2007, the European Court of Human Rights rendered judgment in D.H. and others v. the Czech Republic (Application No. 57325/00, November 13, 2007). This landmark case was brought by 18 Roma students from the Ostrava region who complained that they were diagnosed as children with “mild mental disability” and enrolled into special education because of their ethnicity. The ECHR’s Grand Chamber found that the practice of labelling Roma children as children with “mild mental disability” and segregating them in special education violated Article 14 of the European Convention.
Roma children in the Czech Republic are still disproportionally assessed as individuals with mild mental disability. The data from the 2016/2017 school year collected by the Ministry of Education, Youth and Sports show that 30.9 % of children who are taught as children with “mild mental disability” are Roma, yet the share of Roma children in all elementary schools in the Czech Republic is 3.7 %.
But even though the share of Roma children has not significantly changed over the last four school years, there is some hope for the future. After years of political instability, the Czech Republic has approved a number of reforms that lay the groundwork for inclusive education; however, the impact on the ground of these measures is still unclear and needs to be closely monitored.
The implementation of the D.H. judgment has been greatly complicated by the instability of the Czech Governments and Ministers of Education. Since 2006 the average time at the post of the minister was less than 13 months. The Czech Government proceeded with some changes during the first few years after the judgment, but it took until 2015 and 2016 for significant legislative changes in the law.
The inclusive reforms of 2015 and 2016 consisted of approving two amendments to the Czech Republic’s School Act and the abolishment of its educational program for children with mild mental disability. The Parliament approved a bill in 2015 that guarantees support measures to every child with disabilities and to children with other special educational needs. These support measures are free of charge and are provided to children in mainstream and special schools. Mainstream schools educating children with special educational needs faced more obstacles and received less funds than the special schools. One analysis showed that the state provided 2.2 times more funds, when a child with mild mental disability was educated in a “practical school”. Despite the fact that “practical schools”—where most of the children with mild mental disability were educated in the past—have been abolished in name, these same schools were then transformed into either mainstream or special schools. This transformation—and whether it has led to less segregation and discrimination against Roma children—is still to be assessed.
The second inclusive reform introduced a compulsory year of pre-school to all children from the age of five years. This measure aims at improving enrolment of Roma children into kindergarten. According to data from the EU Agency for Fundamental Rights, only 34 percent of Roma children are enrolled into pre-school education, in comparison with 86 percent of non-Roma.
When the bill on compulsory pre-school education was discussed in the Parliament, inclusive education became a politically controversial issue. Even though the Parliament approved the first inclusive reform in February 2015, some MPs—including many who had voted for the 2015 bill—started questioning inclusive education within less than a year. One of the reasons for their decision was a massive campaign by the biggest tabloid in the Czech Republic against inclusive education called “Stop Harmful Inclusion”.
Several MPs in the Chamber of Deputies (the lower chamber of the Czech Parliament) also tried to misuse the bill on compulsory pre-school by proposing to postpone the date of the effect of the support measures by two years (from September 2016 to September 2018). Even though the main aim of the bill was compulsory pre-school, MPs spent more time debating details of the first inclusive education reform they had passed the previous year. This attempt to postpone the effect of the support measures was not successful in the Parliament; a similar unsuccessful attempt was made in the Senate.
Every bill must be signed also by the President of the Czech Republic, who has a power to veto it. The veto can be overridden by the Chamber of Deputies. The president Miloš Zeman decided to veto the bill on compulsory pre-school and one reason that he gave was that he did not agree with the system of support measures and inclusive education (again, this was the very bill he had signed into law the previous year with no objection.) Vetoing a bill, because of measures that the bill does not contain is a text-book case of what is now being called post-truth politics. The Chamber of Deputies overrode the veto.
In the face of these obstacles, civil society organizations, inclusive schools and parents have played a crucial role in the implementation of the judgment, particularly in the area of providing relevant information to stakeholders at the national and international level. Indeed, at one point NGOs that supported inclusive education reforms became a target of the “Stop Harmful Inclusion” campaign and were portrayed as a group only lobbying for their own financial resources. This accusation turned out to be an “alternative fact”, because almost all targeted NGOs received no funds from the state.
In the end, all necessary reforms were passed and came into effect or about to come into effect. The first inclusive reform introducing support measures took effect in 2016 and the second, regarding the compulsory year of pre-school, will come into effect in September 2017. The educational program for children with mild mental disability was abolished at the start of the current school year.
The bad news is that after almost a decade after the judgment, Roma children in the Czech Republic still face widespread discrimination and segregation. Not only are they wrongly assessed as children with mild mental disability, but one quarter of all Roma children are educated in the 83 segregated schools that have Roma majorities. Some Roma children also face segregation on the classroom level. There is no data for the whole country, but there are some known cases. One is in the town Krásná Lípa, where a headmaster established two classes according to a “neutral” criteria which was whether or not a child had attended kindergarten. This resulted in there being one all-Roma classroom and one non-Roma classroom.
Importantly, discrimination in mainstream education was recently recognized by the Czech judiciary as well, by a District Court in Ostrava. The Court decided that two Roma boys were denied enrolment into mainstream school due to their ethnicity. The decision of the Court is groundbreaking, since it is the first acknowledgment of discrimination in education on the basis of ethnicity at the level of District Court (the first level of courts in the Czech Republic).
The good news is that the Government passed major reforms from the Action Plan presented to the Committee of Ministers. We can see how crucial political will is for the proper implementation of judgments. Another piece of good news should also be seen in the very fact that this data is now being collected. Since the inclusive reforms are so recent, it is hard yet to evaluate this data. Moreover, having such data will not change anything on its own, but it is and will continue to be a key tool for monitoring and evaluating the inclusive reforms that are being implemented.
 Most of children with the diagnosis of “mild mental disability” are taught in special education, Roma and non-Roma. According to the data of the Ministry of Education, Youth and Sports, only 15, 25 percent of children with mild mental disability were taught in mainstream school in 2016. Despite this low number, it is an increase from 4 percent in 2007. Vzdělávání dětí s lehkým mentálním postižením (LMP) v datech, www.cosiv.cz, January 17, 2017
 The are two types of elementary schools in the Czech Republic: mainstream and special school. Every child has a right to be enrolled into his, her local mainstream school, including children with disabilities and special educational needs. If the child is diagnosed with disability, it needs an approval of Special Educational Center to be enrolled into special education. Parents also must provide an „informed consent“ with such enrollment.
 Klusáček, Jan, Hrstka, Daniel: Nákladnost vzdělávání dětí s lehkým mentálním postižením v základních školách praktických, 2015
 Czech foundation says tabloid is bolstering media hysteria about school reforms, Romea.cz, February 23, 2016
 Czech President says he vetoed education amendment because of inclusion, Romea.cz, May 5, 2016
 Analysis: Czech tabloid launches campaign against inclusive education, Romea.cz, March 20, 2016