Case Summary and Outcome

A Slovakian district court held that Slovakia had insufficiently implemented measures to facilitate equal education for pupils from marginalized Roma communities during the COVID-19 pandemic, particularly in the context of distance and online education. A student had argued that, due to her Roma ethnicity and social background, she experienced indirect discrimination as the Internet connection and necessary devices for distance online education were not provided during her first three years at elementary school. The Court emphasized the insufficient digital literacy and equipment in marginalized Roma communities which formed the basis for finding indirect discrimination by the state when it mandated distance education. Thus, the Court upheld the claim and awarded compensation.

Facts

A student at an elementary school in Slovakia attended her first three years from 2019 to 2022. She belongs to the marginalized Roma community and she resides with her grandparents, both of whom have received elementary education. Their household lacked an internet connection, computers, or tablets, and due to limited computer skills, they could only afford and use mobile internet.

From 2020 to 2022, the student’s elementary school alternated between in-person and distance education due to the COVID-19 pandemic and measures imposed by the State. The distance education method involved distributing weekly worksheets with tasks that the student completed in 10–15 minutes without receiving any feedback. Textbooks were not provided by the school, but the student’s grandmother obtained them through a non-governmental organization. At the same time, schools in general provided distance education through educational applications for pupils with internet connection (e.g. in the form of online assignments in digital educational applications or online learning through video calls) and this approach was encouraged by the State when schools were closed due to the ministerial orders and related legislation. After a time, the student’s school had determined that the distribution of worksheets was ineffective, and then provided only education through digital applications.

The student brought a court application, arguing that the distant online education discriminated against the marginalized Roma community.

Decision Overview

The District Court in Prešov delivered the judgment. The central issue before the Court was whether the state indirectly discriminated against the Roma marginalized community, including the student, through inadequately-implemented measures for distance online education during the COVID-19 pandemic.

The student argued that online digital education was instituted without providing the necessary equipment and connections for marginalized communities, which exacerbated an existing digital divide. The student sought recognition that the State violated her rights by not implementing  “complex” and “systematic” measures for equal access to internet connection and digital technologies for marginalized communities and referred to national anti-discrimination laws based on indirect discrimination due to her ethnicity. She sought compensation for non-material damage (€3,000) due to the infringement on human dignity and capacity for future social participation. The student presented statistics and findings derived from surveys and research which set out that 7.5% of pupils were not engaged in distance education, and 18.5% did not have access to education through the internet. The reports detailed that, specifically, 70% of pupils from the Roma community were not involved in digital education, with higher percentages in certain areas of Slovakia, including the student’s locality, ranging between 90-100%. This was largely attributed to insufficient digital literacy, limited internet access, and inadequate equipment.

The State – represented by the Ministry of Education, Science, Research, and Sport of the Slovak Republic – argued that it had provided sufficient measures to respect constitutional rights to education while balancing the right to education with the protection of life and health during the COVID-19 pandemic. It submitted that applications for online digital education were available on mobile phones, which the student could have used.

The Court primarily considered provisions of the Constitution of the Slovak Republic, focusing on equal treatment (Article 12), the prohibition of discrimination (Article 12), freedom of expression and the right to information (Article 26) and the right to education (Article 42). It also examined provisions of the Education Act, highlighting provisions on equal access to education, inclusive education, individualized approaches, distance education, and exercising rights in compliance with good manners. The Court noted that the Anti-discrimination Act was also relevant as it prohibits direct and indirect discrimination based on factors such as ethnicity. That Act allows for temporary balancing measures to eliminate social or economic advantages for marginalized communities, supporting the creation of an equal environment for them, provided that such measures are demonstrably necessary, proportional, and aimed at reducing or eliminating inequality.

The Court emphasized the right to education’s relevance for the exercise of other fundamental rights, including the right to work, the right to life with dignity, and the right to information and freedom of expression. It stressed that during the pandemic, the State was obligated to secure the right to education and access to education.

The Court analyzed the concept of indirect discrimination with references to academic literature and the case law of the European Court of Human Rights, specifically citing cases such as Bibao v Denmark, D.H. and other v Czech Republic, CGIL v Italy  and International Association Autism-Europe v France. The Court reiterated that indirect discrimination arises when otherwise neutral laws have discriminatory effects in practice. The Court applied the test based on European jurisprudence, particularly D.H. and other v Czech Republic, where the plaintiff has to prove with statistics or other means that otherwise neutral criteria significantly influence the protected group and that the plaintiff is a member of that group. When these criteria are met, the burden of proof shifts to the defendant to defend the practice. The Court assessed the existence of such otherwise neutral criteria and the fulfillment of the criteria above. As the Court noted, during the pandemic, schools were closed and required to ensure distance education which represented an otherwise neutral rule applicable to every school. The elementary school in this case had initially distributed worksheets for pupils from marginalized communities but ceased when this method proved ineffective, transitioning to online education.

The Court held that it is indisputable that the student is a member of the marginalized community. The Court referred to statistics indicating that internet access is available to only 46% of members of the marginalized Roma community, only 23% possess technical equipment (computer or notebook), and that using educational applications requires sufficient computer skills.

Although the Court held that the protection of life and health was necessary, it also noted that the adopted measures should have addressed existing inequalities in marginalized communities. Additionally, the Court emphasized that the State was permitted to adopt temporary balancing measures to reduce or eliminate inequality but failed to do so. The Court concluded by stating that due to the factual situation, “the starting line of pupils from marginalized Roma communities has inevitably distanced from other pupils”. [para. 87]

Accordingly, the Court held that as the State had not implemented proportionate measures to facilitate the student’s access to education – including providing access to the internet and digital technologies – it indirectly discriminated against the student and other members of the marginalized Roma community based on their social origin, economic status, and ethnicity. Thus, it awarded the student compensation for non-material damage for €3,000.