EBH/366/2014

Year
2014
Protected characteristics
Sexual orientation
Field of discrimination
Education
Type of discrimination
Direct discriminatory
Ending
Condemning decision

The legal guardian of the underage petitioner turned to the Authority with a complaint because the school where she sought to enrol her child in September 2013 as a student in the seventh grade rejected the application. The petitioner's legal guardian assessed that the reason for the rejection was the fact that the child's nuclear family consisted of herself and her same-sex partner. The petitioner informed the child's prospective teacher about this during a previously announced personal visit by the teacher on 28 August 2013. The next day she received a notice from the class teacher informing her that she cannot accept the child into the class because of his family situation. In response, the legal guardian of the petitioner turned to the head of the educational institution who informed her in an electronic mail that the institution's management sees no way of changing the class teacher's decision.

The Authority launched proceedings and called on the subject of the procedure to submit a statement on how it decides who is admitted to the educational institution as a student and what the criteria governing admissions are. In its statement, the subject of the procedure explained that admission decisions in the upper forms are solely within the discretion and autonomy of the class teacher since it is his/her job to accompany the given student community from the first grade all the way to the end of the eighth. The subject of the procedure stressed that the school is not among the educational institutions which are under obligation to accept students living within a given geographical area, and explained that its objective in deciding admissions and in shaping the classroom community is to ensure that the community can go from first to eighth grade with as few changes as possible. The subject of the procedure explained further that the application of a family asking that their child be admitted into an upper form at the school is an "extraordinary" event, and in all such cases the teacher has a heightened responsibility and is required to carefully consider the viability of integrating the applicant student into the classroom community. It was also explained that the presumed class teacher meets with the parents and the children several times during the application process, invites the child to visit on a so-called visiting day, and uses the opportunity to observe the reactions of the classroom to the visiting student. If he/she assesses that admission would be ideal with respect to both the student and the existing classroom community, then he/she asks the parents to fill out a questionnaire and to submit a family history, which the class teacher evaluates together with his/her colleagues. The actual admission interview takes place after all this, that is when the class teacher decides about admission and informs the faculty and the parents of the students in the class about his/her decision.

The subject of the procedure stated that the class teacher had met with and talked to one of the parents and the child, and had raised the possibility of the child coming to visit the class for a day. In the same vein, she also raised the possibility of the child's participation in a study excursion. At the same time, she also noted that the community of children in the particular class was full of tensions. She further noted that in light of the life situation of the petitioner's legal guardian, the admission of the student might result in consequences that could potentially have the impact of furthering these tensions both within the class community and the wider community, which also includes the parents. Thus, the class teacher decided that she could not continue with the admission process of the petitioner. According to the subject of the procedure, the class teacher thought that accepting the petitioner into the class community would have been unacceptable from the perspective of the petitioner himself because of the potentially aggressive behaviour anticipated on the part of the dominant children in the classroom community. The subject of the procedure further noted that it was aware of the class teacher's decision and also of the reasoning behind it, which was that the teacher did not feel capable of resolving the problem that the petitioner's family status would raise. The school's management acknowledged this decision because it assessed that the class community was in such a state that it would presumably not have been able to accept the child.

The Authority also heard the class teacher – as a witness in a hearing held outside the regular procedure – who had rendered the decision rejecting the child. At the hearing, the witness invoked that in rendering this decision she had started from the abovementioned assumptions regarding the student community, and she believes that the students would have harmed the petitioner because of the fact that his parents are of the same gender. In response to a question by the parent's representative, the witness said that if she hadn't known that the petitioner was raised by same-sex parents, she would have allowed him to come for a visiting day. The witness submitted further that during her conversation with the petitioner, which lasted an hour, she found that the child was withdrawn and anxious, but she does not remember telling his mother that this would be an impediment to admitting him. In her recollection, the conversation ended with her telling the petitioner and his mother that the class will welcome the child at the visiting day. According to the witness statement, the goal of the visiting day is to allow the guest to experience what the school is like and for the class to get to know the guest. The petitioner's legal guardian did not give her child this opportunity, however, because she feared that he may be subject to harm on visiting day.

The Authority's assessment was that based on the electronic letter submitted during the proceedings, it was clearly apparent that the class teacher's decision rejecting the student was rooted in the child's family background, and that the management of the school was aware of this reasoning when it informed the petitioner's legal guardians that it saw no way for changing the class teacher's decision. The Authority further considered that though the class teacher, who was heard as a witness, did indeed invoke that the petitioner had been withdrawn on the occasion of their one-hour meeting, at the same time she also acknowledged that she had not told the parents that the child's withdrawn behaviour would be an impediment to his admission. The Authority assessed that based on the statement by the witness, it was possible to pinpoint the causal relationship between the decision not to allow the student to come in for a visiting day and the information about his family background; that is if the teacher had not known that the child was raised by same-sex parents, then she would have allowed the student to visit the class. Furthermore, the teacher also stated that she was not aware of any other cases in which the school had withdrawn its promise to let a student attend a visiting day. In light of the above, the Authority determined that there was a connection between the protected characteristic and the disadvantage suffered by the petitioner.

Next, the Authority investigated whether an objective assessment suggested that there were any reasonable grounds for the differential treatment employed by the educational institution. During the proceedings, the subject of the procedure invoked that the decision to reject the application was taken in the interest of the petitioner and of the other students, for the school wished to protect the future class community and the petitioner alike from the anticipated conflicts that would arise as a result of the fact that the petitioner is raised by same-sex parents. The subject of the procedure sought to undergird this claim by arguing that the class community is already fraught with conflicts as a result of the fact that the students are in their adolescence, and thus the community was not at a stage when it was accepting of difference. The position of the subject of the procedure was namely that due to the numerical superiority of girls in the class, and because of their particular temperament, the petitioner would have been subject to offensive behaviour on the part of the female members of the community.

In light of the fact that in the case at hand the subject of the procedure's reasoning was based on pure speculation, and that the school had failed to afford the petitioner even a chance at meeting the members of the community, the Authority did not accept the proffered justification as reasonable grounds for the school's decision. The Authority also considered that during their one-hour consultation, the class teacher had also failed to inform the petitioner's legal guardian about the type of conflicts that they had to anticipate in the classroom, nor did she mention her concerns regarding the child's integration. On the whole, the Authority's position was that the presentations of the subject of the procedure were not acceptable as reasonable grounds because they failed to offer the petitioner even the possibility of coming in for a visiting day, even though the goal of this institution was precisely to observe how a student would likely fit in with his/her future community. Nor did the Authority accept as reasonable grounds the argument that there are situations that the teacher cannot handle. The Authority's position was namely that acceptance into a class community cannot be denied with reference to the fact that the child lives in a family that is different from the family model observed in the majority of society, and that the community would thus reject him, or that the teacher would not be able to resolve the conflict that might emerge from such a situation.

One of the responsibilities of an educational institution ought to be to educate the children entrusted to its care towards tolerance, in line with the international Convention transposed by Act LXIV of 1991 on the rights of the child. In light of the aforementioned, no protected characteristic of either the child or his/her parents/legal guardians can serve as the basis for discriminative treatment, and differential treatment is only allowed in situations when the law expressly authorises this. The actions taken by the subject of the procedure in this context were contrary to the goal of encouraging diversity and inclusion, and this cannot be justified with reference to the teacher's lacking competence in handling conflicts.

Based on the evidentiary procedure conducted, it became apparent that the subject of the procedure's efforts at discharging its burden of proof in compliance with the requirements set out in Act CXXV of 2003 on equal treatment and the promotion of equal opportunities (abbreviated as Ebktv in Hungarian) had not been successful, and that it had failed to present a reasonable explanation to show that its actions had been in compliance with the law.

The Authority determined that the principle of equal treatment had been violated and barred the subject of the procedure from future manifestations of such conduct. It ordered the publication of its binding decision with the goal of helping to prevent similar cases in the future and also assessed a monetary fine.

In rendering its decision, the Authority also considered that the use of admission criteria at an educational institution that result in the unreasonable exclusion of children from the school community who live in family models that diverge from the majority is problematic in terms of the best interests of the child, and is moreover also contrary to domestic and international norms alike. The Authority was also mindful of the fact that the underage petitioner was not the only one to suffer a disadvantage, but so did his legal guardian. In the case of the latter, the violation of human dignity was manifested in the fact that the institution decided to reject the application of her child with reference to her relationship with her partner. By applying these sanctions at the same time, the Authority sought to emphasise the gravity of the infringement, and in this context it also considered the number of persons affected and the fact that one of these persons is a minor with a limited legal capacity to assert his own interests.